report - ClientEarth

Transcription

Black Paper. Implementation of EU
Climate and Energy Law
in Poland.
ClientEarth Poland is part of the international
legal organization with headquarters in London
and offices in Warsaw and Brussels. We engaged with
environmental law both at the stage of its formation
and execution. We are interested in analytical work
and action in areas where people and nature need it.
Publisher: ClientEarth Poland
Al. Ujazdowskie 39/4, 00-540 Warszawa
The law is stated as 14th September 2013
Edited by: Marcin Stoczkiewicz
Printing and binding: Grafix Bis Zakład Poligraficzny Szymański S.
© Copyright by ClientEarth Poland, Warsaw 2013
ISBN 978-83-938296-0-6
2
Black Paper.
Implementation of EU
Climate and Energy Law
in Poland
3
Table of Contents
6
Introduction
7Member States’ Duties to Comply with the Rule of EU Law
12Directive on the greenhouse gas emissions allowance trading scheme
Directive 2009/29/EC
20Directive on the promotion of the use of energy from renewable sources
Directive 2009/28/EC (Power)
32Directive on the promotion of the use of energy from renewable sources (Transport)
38The CCS Directive
44Directive on Energy End-use Efficiency and Energy Services
58The Directive on the Ecodesign of Energy-Related Products
64Directive on Product Information about the Consumption of Energy
72Directive on the Energy Performance of Buildings
Directive 2010/31/EU
78The Fuel Quality Directive
82Directive on ambient air quality and cleaner air for Europe (CAFE)
88Directive on industrial emissions
92Directive on environmental impact assessment
100
Note About the Autors
101
Summary
5
Introduction
Maria Magdalena Kenig-Witkowska
Marcin Stoczkiewicz
The Warsaw Conference of the Parties to the Framework
Convention of the United Nations (UN) on Climate Change
(UNFCCC COP19) is the inspiration for the NGO ClientEarth to review and assess the state of climate protection law in Poland.
The current Polish legislation that makes up climate
protection law is the result of the implementation into national law of the European Union legislation on the subject.
Addressed to the Member States, directives of the European Parliament and of the Council, in order to achieve
their effectiveness, require, above all, their transposition
into national law and the establishment of a national
institutional framework for their implementation and enforcement. From this perspective, the 19th Conference of
the Parties to the UN Framework Convention on Climate
Change is the right opportunity to raise the question of the
status of the implementation of European climate protection law in Poland, especially that of laws for the reduction
of so-called greenhouse gases.
Poland has made significant achievements in the reduction of greenhouse gas emissions. It needs to be noted,
however, that the significant reduction in greenhouse gas
emissions in Poland is primarily due to the adjustment of the
technical parameters of Polish industry to meet European
environmental standards in relation to the Polish accession
to the European Union in 2004, preceded by the process
of economic transformation that took place in Poland in
the 1990s, as a result of which, many of the most obsolete
industrial plants were closed for economic reasons.
The standards implemented into EU law in the field of
climate protection define boundary levels for the reduction of greenhouse gas emissions in the coming years.
Whether that reduction trend will continue and whether the
Polish economy will move towards a low carbon economy
in line with EU policy in this area depends on the timeliness and quality of the implementation of this law.
This publication is a kind of a report, a review and an
analysis of the implementation in Poland of the most important directives which constitute climate protection law in
the European Union. It mainly covers the directives of the
so-called climate and energy package and the associated
functional directives on energy efficiency, industrial emissions and air quality. Their complete implementation could
have a positive effect on the reduction trends of greenhouse gas emissions.
The conclusions of the report are unfortunately not
optimistic. As it turns out, most of the directives have
not been transposed into Polish law in a timely manner, which would be essential for their implementation,
and this means that the objectives of the directives are
significantly compromised. Particularly noteworthy is the
lack of transposition of the so-called Second Directive
on Emissions Trading (2009/28/EC) and The Directive on Industrial Emissions (2010/75/EU). Due to this
negligence, the European Commission has launched
proceedings under Article 258 and Article 260 of the
Treaty on the Functioning of the European Union.
The results presented in the report are even more alarming in light of the statistics issued by the Court of Justice of
the European Union and the European Commission. These
statistics show that, in 2012, Poland had the highest number
of complaints to the European Court of Justice filed by the
Commission against a Member State in connection with
violation of European law (12 cases). These were mainly
cases in the field of energy law and environmental law.1 According to the Commission’s statistics, in 2011, Poland was
ranked first among the EU Member States in the category of
proceedings initiated by the Commission in the absence of
timely transposition of directives (46 cases).2
Negligence of the implementation of EU climate law
in Poland requires national authorities to react quickly to
repair this state of affairs. This negligence leads to negative consequences for Poland and its citizens, including a
violation of the image of the Polish state as a Rule-of-law
state, and the lack of a rapid improvement in the implementation of climate law in Poland could result in a lost
process, financial sanctions imposed on the Polish state
and the blocking by the European Commission of European Union structural funds.
While advocating the actions mentioned above, it
should be stressed that the EU directives on climate
protection combine environmental and climate protection
with the stimulation of economic development. Negligence
in the implementation of these provisions into national
law results in lost opportunities for the Polish economy
and tangible possibilities for Polish citizens. This proves
the fact that efforts to reduce greenhouse gas emissions,
when entered into a broader policy to reduce emissions,
could lead to the improvement of those parts of the environment which are the most relevant from the perspective
of improving the quality of life in Poland. In addition, a
proper implementation of EU climate law combined with
the development of local jobs in small and medium-sized
enterprises (particularly in the areas of energy efficiency
and renewable energy) and an increase in savings and
efficiency in the public and private spheres, would in turn
lead to the modernization of the economy.
From this perspective, it seems to be a purely rhetorical question whether or not Poland will be able take
advantage of these opportunities. We hope that this report
may at least partly contribute to the expected response.
Professor Maria Magdalena Kenig-Witkowska
Program Board of ClientEarth Poland
Marcin Stoczkiewicz, Ph.D.
Board Member of ClientEarth Poland
1. http://www.polskieradio.pl/5/3/Artykul/926348,Polska-najczesciej-lamie-unijne-prawo-KE-pozwala-nas-12-razy
2. http://ec.europa.eu/eu_law/docs/docs_infringements/annual_report_29/sg_annual_report_monitoring_eu_law_121130.pdf
6
Member States’ Duties to Comply with the Rule of EU Law
Sharon Turner
Introduction
Section 1
There are few EU law obligations that are as well defined
as the obligation imposed on Member States to comply
with the rule of EU law. This duty is clearly established as
a fundamental constitutional duty of EU membership.
The nature and scope of the obligation has been addressed by the European Court of Justice on numerous
occasions and is consequently the subject of extensive
and unequivocal judicial interpretation. It encompasses
not only the duty to comply with the terms of the European
Treaties (the ‘primary’ source of EU law) and general
principles of EU law, but also a duty to comply with the EU
‘secondary’ legislation (Regulations, Decisions and Directives adopted by the EU institutions) and rulings of the
European Courts.
The foundation stone for this obligation arises from
the general duty of ‘sincere co-operation’ enshrined in the
European Treaties from the outset. Today it is contained in
Article 4(3) of the Treaty on European Union (TEU).
First and foremost, it provides that Member States
and the EU institutions must, ‘in full mutual respect, assist
each other in carrying out the tasks which flow from the
Treaties.’
Secondly, it requires Member States ‘take any appropriate measure, general or particular, to ensure fulfilment
of the obligations arising from the Treaties or resulting
from the acts of the institutions of the EU’.
Third, Member States must furthermore ‘facilitate the
achievement of the Union’s tasks and refrain from any
measure which could jeopardise the attainment of the
Union’s objectives’.
Compliance with the rule of EU law is undoubtedly one
of the most fundamental consequences of the general
duty of sincere co-operation. Where a Member State fails
to comply with the terms of the European Treaties or fails
to comply with the obligations to comply with and transpose EU secondary legislation, the European Commission
is empowered under Articles 258 and 260 of the Treaty on
the Functioning of the EU (TFEU) to commence enforcement proceedings against it. Enforcement action may
lead not only to a binding European Court ruling requiring
compliance but potentially to the additional imposition of
substantial financial sanctions. Member States’ obligations to comply
with the rule of EU law
The purpose of this chapter is twofold; namely to provide
an overview of the:
(a) Nature and scope of Member States’ obligation to comply with the rule of EU law, focusing in particular on the
duty to comply with EU secondary legislation and
(b) European Commission’s powers to commence enforcement proceedings and seek financial sanctions
where non-compliance has been identified.
1. Article 1 TFEU
2. [1963] ECR 3
In seeking to understand the nature and scope of the obligation to comply with the rule of EU law, it is first necessary to begin by clarifying the various sources of EU law.
There are six major sources of EU law; namely:
1. P
rimary Law – comprising the Treaties
and the Charter of Rights
2. General Principles of EU Law
3. S
econdary legislation – comprising Regulations,
Directives and Decisions
4. Judgments of the European Court of Justice
Although it can be said that there is a hierarchy between
the sources of EU laws, the differences between these
categories are more formal than real in that all are equally
legally binding.
Primary Sources of EU law
The European Treaties are regarded as the ‘primary’
source of EU law. They are described as such because
they cannot be amended by the EU institutions. Within
this category the European Union (TEU) and the Treaty
on the Functioning of the EU (TFEU) are regarded as the
‘constitutional’ Treaties of the Union because they are the
legal basis on which the Union is founded.1 Both have
been concluded for an unlimited period of time and both
are of equal legal standing (that is, one is not subordinate
to the other).
The TEU sets out the principles, mission, values,
fundamental rights, objectives and institutional structure
of the EU, while the TFEU sets out the more detailed
rules concerning the functioning of the Union. It should
also be noted that while both Treaties were the subject of
extensive recent amendment by the Treaty of Lisbon in
2009, the latter Treaty did not itself have an independent
existence, thus the Lisbon Treaty is not considered as one
of the ‘constitutional’ Treaties of the EU.
The EURATOM Treaty continues to exist alongside
the foundational or core ‘constitutional’ Treaties and thus
remains a binding source of primary EU law. It should
also be noted that the Charter of Fundamental Rights of
the EU, in light of which all provisions of the foundational
Treaties must be interpreted (Protocol 30), is of equal legal
standing to the Treaties.
One of the most important concepts to emphasise concerning the binding effect of the EU Treaties is that they
cannot be compared to classical international Treaties. In
Case 26/62 Van Gend en Loos2 the European Court ruled that the
founding Treaty (now enshrined in the TEU and TFEU)
“is more than an agreement which merely creates mutual
obligations between the Contracting States” and that the
“Community [now the ‘Union’] constitutes a new legal
order of international law”, which creates rights and obligations not only for Member States but more importantly for
their nationals, “which become part of their legal heritage”.
7
General Principles of Law
The general principles of EU law represent a category of
judge made law in that they have been adopted and developed over decades through rulings of the courts of the EU
– principally the European Court of Justice. For present
purposes EU law includes adherence with the following
general principles:
1. Proportionality
2. Fundamental Rights
3. Legal Certainty
4. Legitimate Expectations
5. Equality
6. Precautionary Principle
7. Procedural Justice
These principles have been developed by the Court when
interpreting the Treaties and also for interpreting the
meaning and validity of EU legislation. Thus whereas all
sources of EU law will be interpreted in light of the general
principles, they can only be used as a basis for invalidating sources of EU secondary legislation.
Secondary Sources of EU Law
Under Article 228 TFEU, the institutions of the Union are
conferred with extensive powers to adopt ‘legal acts’ for
the purposes of implementing the objectives laid down in
the Treaties and giving full effect to EU law and policies.
In effect, the EU institutions have law-making powers. Article 228 gives the institutions the powers to adopt 3 types
of legal acts:
1. Regulations
2. Directives
3. Decisions
Although the nature of these legal acts varies, they are
all legally binding. In essence, the Treaty created three
different categories of EU measures because different legislative measures will needed in different circumstances.
This reality is reflected in the definition of these measures
discussed below.
Before addressing the nature of these forms of EU
legislation it is important to note that Article 288 TFEU also
empowers the EU institutions to adopt ‘Recommendations’
and ‘Opinions’. However, Article 288 also provides that
these measures have ‘no legal force’. While Recommendations and Opinions are not legally binding, they are not
devoid of all legal effect. In essence, they are considered
to form part of the ‘soft law’ of the EU, which includes
guidelines, action plans, strategies and communications
adopted by the EU institutions – most commonly the Commission. While soft law measures are not legally binding
they have a legal weight in the interpretation of EU law.
This fact was confirmed by the European Court in Case
322/88 Grimaldi3 in which it ruled that national courts and
Member States are required to take Recommendations
and Opinions into account when interpreting EU law.
In terms of understanding the legal effect of Regulations, Decisions and Directives a number of general points
must first be emphasised; namely:
1. There is no hierarchy between these types of measures.
All carry equal legal weight.
2. The EU institutions have the power to decide whether
to use Regulations, Decisions or Directives to introduce
EU measures in a specific context. As will be seen
below, these measures differ in how they function and
thus their adoption will depend on the substantive context. That said, there are many individual areas of EU
regulation governed by combinations of Regulations,
Decisions and Directives. There may, for example,
be a ‘foundational’ Regulation followed by a series of
Directives and Decisions. However, there may equally
be a foundational Directive (often termed a ‘framework’
Directive) followed by more specific Directives.
3. F
ollowing amendments introduced by the Lisbon Treaty,
Regulations, Directives and Decisions may take the
form of ‘legislative’, ‘delegated’ or ‘implementing’ acts.
The specific form they take will not affect their nature as
defined below and all forms of each measure are legally
binding. The differences between them can be summarised as follows:
(a) R
egulations, Directives or Decisions adopted by the
ordinary legislative procedure (previously termed ‘codecision’), or the special legislative procedures (used in
specific contexts) set down in the Treaties are deemed
to be ‘legislative acts’.
(b) R
egulations, Directives or Decisions adopted without
use of a legislative procedure will be deemed either
‘delegated’ or ‘implementing’ Regulations, Directives or
Decisions. However, even though such measures are
formally deemed ‘non-legislative’, they are legally binding. The term ‘delegating’ or ‘implementing’ will be used
in the title of the measure to clarify its nature.4
Re Delegated Acts: Under Article 290 TFEU, the Commission can only adopt Regulations, Directives or Decisions
adopted as ‘delegated’ acts where power to do so has
been explicitly conferred by measures adopted as ‘legislative acts’. Delegated acts are not adopted by the Commission with the advice of committees comprised of national
technical experts (not the old ‘Comitology’ procedure) under rules set down in Article 290 TFEU but subject to oversight by the European Parliament and Council. Delegated
acts are effectively what in many domestic legal systems
would be regarded as ‘secondary’ or delegated legislation.
Although they are defined as ‘non-legislative acts of general application’, they are legally binding and apply to the
EU as a whole. Delegated acts can supplement or amend
certain non-essential elements of Regulations, Directives
or Decisions adopted by means of legislative procedures.
The Commission has adopted a Communication giving
further clarification as to the nature of the delegated acts
process.5
Re Implementing Acts: The adoption of measures adopted
as ‘implementing acts’ are governed by Article 291 TFEU.
Like delegating acts, implementing acts can have a general application to the EU as a whole. The major difference
between these acts is that implementing acts are designed
to execute a legislative act without amendment or supplementation. Implementing acts are adopted where there is
a need to ensure uniform conditions for implementation.
3. [1989] ECR 4407.
4. These new categories of EU legislation are a development of the process previously used by the EU Commission to adopt the more detailed technical (but
binding) rules needed to ensure the objectives of EU legislation. Prior to the Lisbon Treaty these measures were adopted by means of the ‘Comitology’ procedure, and though a wide range of measures from rule making to more implementing guidelines were adopted under this process, no distinction was made
between the types of measures that could be adopted.
5. ‘Implementation of Article 290 TFEU’ COM(2009) 673 final.
8
4. In terms of understanding the core nature of Regulations, Directives and Decisions, the following important
points should be emphasised. However, it is worth
reiterating, that all three categories of EU legislation are
equally legal binding whether they are adopted in their
legislative, delegated or implementing forms:
(a) are defined as being of general application (i.e., to the
Union as a whole) and shall be binding in their entirety and
directly applicable to Member States. In effect, Regulations are used to introduce legal obligations applying to
the EU as a whole and come into legal effect from the date
they are adopted by the EU.
(b) Decisions are identical to Regulations in that they
are legally binding and come into effect upon being
adopted by the EU; however they differ in that they
are used to introduce legal obligations for individual or
groups of Member States and thus are not addressed
to the EU as a whole. Decisions are thus binding only
on the Member States to whom they are addressed.
(c) are identical to the other forms of legal acts in that they
are legally binding, but differ in two respects; namely they:
I. M
ay be used to address either the EU as a whole or
individual/groups of Member States.
II. R
equire a process of legislative transposition and
practical implementation by Member States.
Understanding more about
the legal effect of Directives
Directives are by far the most commonly used of the three
EU acts because they are specifically designed to facilitate
the process of harmonising legal standards across the
EU. Although Member States are required to comply with
the terms of Directives, most Directives give Member
States a specific period of time within which to make the
necessary arrangements to ensure conformity with the
common EU standard. This period is referred to as the
‘transposition period’. The specific transposition period for
each Directive varies depending on the complexity of the
legal changes required at national level and/or the scale
of economic, social, infrastructural or institutional change
required at national level to ensure compliance. It should
be noted that while the transposition period normally
involves an extended period (normally approximately two
years), in some instances Directives do not prescribe a
specific implementation deadline and thus full compliance
is required at national level 20 days after publication in the
EU’s Official Journal. However, it is essential to emphasise, that while Article
288 TFEU affords Member States a degree of discretion
concerning ‘the form and method’ of achieving compliance, this discretion is subject to strict legally enforceable
limits, the nature of which have been clearly laid down
by the European Court. The Court’s jurisprudence in this
regard is extensive and well established.6
The limits of Member State discretion can be summarised as follows:
1. Lawful transposition can only be achieved by means
of national legislation. In Case 102/79 Commission v
Belgium7 the European Court ruled that Member States
cannot achieve compliance by means of informal or
non-legislative measures adopted at national level
(such as administrative measures). The requirement to
transpose Directives into national legislation is based
on the Court’s concern that Member States must ensure
legal certainty at national level concerning the requirements of EU Directives.8
2. M
ember States must ensure that the terms of a Directive are fully and accurately transposed into national
law. Legal transposition must be completed by the
deadline set down in the Directive for transposition.
Thus, late, partial or selective legal transposition of a
Directive is a breach of Article 288 TFEU.
3. M
ember States must ensure timely legal transposition
for their entire territory. Thus introducing full legal transposition that applies only to certain regions of a Member
State constitutes a breach of the compliance duty. In
Case C-157/89 Commission v Italy9 the European Court
ruled that a Member State cannot rely on internal constitutional arrangements devolving legislative powers to
regional administrations as a defence to late or incomplete transposition.
4. M
ember States must also ensure compliance in practice. In effect, the duty to achieve the results required by
a Directive includes a duty to make whatever infrastructural, regulatory, institutional, social, economic, environmental or other practical changes necessary to ensure
that the results required by the Directive are achieved in
reality. Thus, even where a Member State ensures full
legislative transposition, a failure to achieve the practical
outcomes required by a Directive will represent a breach
of the duty of compliance. For example, where a Member States ensures full legislative transposition of the
Renewables Directive 2009/28/EC but fails in practical
terms to meet the target increase the national consumption of renewable energy set by the Directive for that
State will constitute a breach of the compliance duty.
Before the transposition period has expired, a Directive cannot be enforced against a Member State by
an individual at national level.10 However, once the
transposition period expires, the legal position changes
dramatically. Even where the State has failed to
transpose a Directive correctly or fully into national law
by the prescribed deadline, the Directive nevertheless
becomes ‘directly applicable’11 and is thus acquires full
legal effect once this period expires. The implications of
this can be summarised as follows:
1. The European Commission is empowered to exercise
its enforcement powers (discussed in Section 2) to challenge non-compliance in law. These proceedings may
lead not only to a European Court ruling against the
State but potentially the imposition of substantial lump
sum and/or daily financial sanctions. If the Directive
also contains additional deadlines for achieving specific
practical changes (i.e., new infrastructure, or changes to
the sources of energy consumed with a country) failure
6. This case law is also the subject of extensive academic analysis; leading examples include: S. Prechal, Directives in EC Law (Oxford University Press,
2005) and R. Schütze, European Constitutional Law (Cambridge University Press, 2012)..
7. [1980] ECR 1473.
8. Case C-58/89 Commission v Germany [1991] ECR I-4983
9. [1991] ECR I-57
10. Case 80/86 Criminal Proceedings against Kolpinghuis Nijmegen BV [1987] ECR 3969.
11. It should be noted that the EU law concept of ‘direct applicability’ is distinct from the concept of ‘direct effect’, which refers to the potential for direct enforcement of an EU law measure before national courts by private parties. An EU law measure is only directly effective if specific criteria are satisfied and these are discussed infra.
9
to achieve those outcomes can only be challenged
when those time limits have expired.
2. Individuals (and companies) may seek to directly
enforce the rights and duties contained in the Directive
in national courts against the State. National judges will
also be under a duty to interpret national law, in so far
as is possible, to give effect to the terms of the Directive.
3. An individual or company may sue a Member State in
damages for any loss caused as a result of the State’s
failure to comply with the Directive (provided specific
circumstances are satisfied). In this context the concept
of the ‘State’ includes breaches attributable to the legislative, executive and judicial branches.12
Section 2
The European Commission’s
Enforcement Powers
As was stated at the outset, Article 4(3) of the TEU places
Member States a general duty of sincere cooperation,
which obliges them to work with one another and the EU
institutions to assist in carrying out the tasks which flow
from the Treaties, and more specifically to take any appropriate measures to ensure fulfilment of the obligations
arising from the Treaty or other sources of EU law and to
desist from any action that would jeopardise the Union’s
objectives.
Although it is clear from Section 1 above that the duty
of sincere cooperation requires Member States to ensure
compliance with a substantial range of EU law sources,
there is little doubt that the achievement of the EU’s objectives depends fundamentally on full, timely and uniform
Member State compliance with the corpus of EU law - collectively known as the European ‘acquis’.
Without it, the process of EU harmonisation is rendered impossible, and the political solidarity upon which
the EU project depends, is fundamentally damaged.
Perhaps not surprising, given the central importance
of Member State compliance, EU law creates a substantial legal and institutional framework designed to
deliver this outcome. Although actors at national level are
empowered and required to participate in the process
of enforcing EU law (e.g., individuals, companies, civil
society, regulatory agencies and national courts), the
European Treaties confer the European Commission with
the constitutionally assigned role of ‘guardian of the Treaties’. Article 17 TFEU explicitly requires the Commission
to promote the ‘general interests’ of the Union and take
appropriate measures to that end.
More specifically, under Articles 258-260 TFEU the
Commission is conferred with extensive powers to take
enforcement action against Member States it deems to be
in breach of EU law, including powers to seek the imposition of financial penalties. Although it is Commission
policy to work in close collaboration with Member States to
support compliance, there is little doubt that the combina-
tion of its enforcement powers, taken together with powers
conferred on the European Court of Justice and the Member States’ duty to work in sincere cooperation with the EU
institutions, create a powerful lever to drive compliance
even in the face of entrenched resistance.
For present purposes, the Commission’s powers as
the ‘guardian’ of EU law can be summarised as follows:
1. First and foremost, the Commission has extensive
powers to gather information concerning the nature and
quality of Member State compliance. The duty to act
in sincere cooperation means that all organs of State
at national level and all public bodies are placed under
a general duty to disclose any information thought
necessary by the Commission to determine the quality of national compliance. Almost all Directives now
include specific obligations requiring Member States to
notify the Commission of the measures taken to achieve
transposition when the deadline for achieving legal compliance has expired. Failure to notify is a breach of EU
law separate to any potential failure to ensure accurate,
timely and full transposition. In addition, EU Competition law confers the Commission with extensive powers
of information gathering and investigation of individuals
and undertakings.
2. As already noted, it is Commission policy to work in
close cooperation with Member States to support them
in achieving compliance. Commission policies in this
regard are set out in two Communications (COM(2007)
502 final and COM(2008) 773).13 In addition to working
with national officials and supporting the EU IMPEL Network,14 the Commission routinely publishes Communications, Guidelines and Staff Working Papers designed
to provide guidance to Member States on the correct
interpretation of EU law and policy. Although these
measures are not legally binding in the formal sense,
failure to comply with the advice provided in these documents will be viewed by the Commission as a failure to
act in good faith by a Member State and will be cited in
evidence during any later enforcement proceedings.
3. Article 258 TFEU (ex Article 226 EC) sets out the Commission’s powers to bring a Member State before the
European Court of Justice where it considers the State
to be in breach of EU law. It is important to emphasise
that the European Court has interpreted the Commission’s powers in this context broadly.15 The Commission effectively has an unfettered discretion to decide
whether to open enforcement proceedings, whether to
bring it to the Reasoned Opinion stage and whether and
how quickly to refer case to the European Court. Where
proceedings are launched, the Commission will issue a
Letter of Formal Notice to the national authorities setting
out its views concerning the nature of the breach and
inviting the Member State to submit its views concerning
the accuracy of the Commission’s allegation and if so,
the State’s proposals to ensure compliance. The Commission will sometimes but not always engage in a process of correspondence with the Member State at the
12. Joined Cases C-6/90 and C-9/90 Francovich and Others v Italy ECR I-5357..
13. See also http://ec.europa.eu/environment/legal/law/compliance.htm.
14. Further information concerning the work of the European Union Network for the Implementation and Enforcement of EU Law (IMPEL) can be found at
http://impel.eu/.
15. The scope of the Commission’s enforcement powers and the European Court’s interpretation of those powers are discussed in P. Craig and G. deBurca,
EU Law: Text, Cases and Materials (Oxford University Press, 2011) 5th Edition at Chapter 12.
10
pre-litigation phase. The Commission’s objective is to
ensure compliance without the need for a Court ruling;
however, the Treaty also creates levers for the Commission which strongly discourage Member States abusing this process and protracting non-compliance. If the
Commission continues to be dissatisfied with the state
of legal or practical compliance, it is empowered under
Article 258 (ex Article 226 EC) to issue a ‘Reasoned
Opinion’. This document sets out the case against the
Member State and indicates the Commission’s intention
to refer the case to Court. The Reasoned Opinion also
gives the Member State a deadline for ensuring compliance. If the Member State fails to ensure compliance
with all elements of the Opinion within the timescale
required, the Commission may then refer the case for
judgment before the European Court. Although there
may be a delay of up to 2 years before the case is
finally heard by the Court, the Court is only permitted to
consider the state of Member State compliance at the
time when the Reasoned Opinion expired. Thus, even
if compliance is delivered just before hearing, the Court
will not take this into account in its ruling.
4. Article 260 TFEU (ex Article 228 EC) sets out the
Commission’s powers to apply to the European Court
to have financial sanctions (in the form of daily and/or
lump sum penalties) imposed on a Member States in
breach of EU law. In general the Commission may only
apply to the Court for the imposition of penalties once it
has already obtained a ruling against a Member State
under Article 258 TFEU. In such cases the penalty is
being imposed because the State has failed to comply
with the terms of the Court’s earlier ruling in the Article
258 proceedings within a reasonable period of time.
However, it is important to note that unlike Article 258,
following the Lisbon amendments the Commission is
not required to issue a Reasoned Opinion in Article
260 proceedings and thus is free to expedite a case for
hearing before the Court. Although few financial penalties have been imposed on Member States since these
powers were introduced in the mid-1990s, this should
not be mistaken for Commission reluctance to launch
Article 260 proceedings. The Commission makes frequent use of these powers; however, the small number
of instances where fines have been imposed reflects the
significant deterrent posed by the Court’s willingness to
impose very substantial fines where Article 260 cases
are ultimately referred for judicial hearing. In other
words, the vast majority of Member States remedy the
breach before the case is referred to the judicial stage.
a breach of EU law. This means that the Commission
is now able to move quickly to penalise late or partial
legislative transposition and effectively prevents Member States from protracting non-transposition through
exploiting the pre-Lisbon two-stage penalty procedure.
6. More generally it should be noted that the Commission
has published a number of Communications setting out
its approach to the use of these powers and to the assessment of the level of appropriate penalty.16
Three key factors are considered; namely:
(a) The importance of the EU rule breached
(b) The Member State’s voting weight in the Council
(and thus its influence over the law-making process)
(c) The Member States’s GDP (and thus its ability to pay).
Conclusion
In conclusion therefore there is little doubt that the
obligation imposed on Member States to act in ‘sincere
co-operation’ has a very specific legal meaning and
consequence within EU law. The European Court has
consistently emphasised the fundamental importance of
timely and full implementation of Directives as core duty
of EU membership.
Where this duty is breached, the Commission is
empowered to take potentially swift action to enforce and
penalise non-implementation of EU Directives.
5. However, it is also important to emphasise one further
dimension to the Article 260 procedure with particular
importance in the context of Directive implementation.
The particular seriousness of the risk to EU harmonisation posed by late or incomplete transposition of
Directives was reflected in a second amendment to the
penalty procedure by the Lisbon Treaty. In essence,
where a Member State fails to communicate (‘notify’)
to the Commission full legislative transposition of a
Directive by the required deadline, the Commission is
now empowered to apply directly under Article 260 for
the imposition of penalties. In other words, the Commission is not required to first seek a Court ruling under
Article 258 (formerly Article 228EC) – the reason being
that late or partial transposition is well established as
16. These are available at: http://ec.europa.eu/eu_law/infringements/infringements_260_en.htm.
11
Directive on the
greenhouse gas emissions
allowance trading scheme1
Marcin Stoczkiewicz
12
1. The purpose of the Directive
The Directive constitutes the main measure that fosters
the implementation of climate and energy policy on CO2
emission reduction. The General Court, in its judgement
in case No T-370/11, Poland v the Commission, stated
that: “In accordance with the polluter pays principle referred to in Article 174(2) EC2, the purpose of the trading
scheme was to fix a price for greenhouse gas emissions
and leave the operators to choose between paying the
price or reducing their emissions.”3 The Directive amends
Directive 2003/87/EC of the European Parliament and of
the Council of 13 October 2003 establishing a scheme
for greenhouse gas emission allowance trading within
the Community and amending Council Directive 96/61/
EC (OJ L 275/32, 25.10.2003, p. 631). As the name of
the Directive suggests the purpose of this legal act is to
improve and extend the greenhouse gas (GHG) emission
allowance trading scheme. The Directive also introduces
changes to the purpose of Directive 2003/87/EC. After the
amendments provided for in Directive 2009/29/EC, Article
1 of Directive 2003/87/EC4 specifies the following objectives: 1) the establishment of a scheme for greenhouse
gas emission allowance trading within the Community in
order to promote reductions of greenhouse gas emissions
in a cost-effective and economically efficient manner; 2)
the further reduction of greenhouse gas emissions so
as to contribute to levels of reductions that are considered scientifically necessary to avoid dangerous climate
change; 3) the adoption of provisions for assessing and
implementing a stricter Community reduction commitment exceeding 20%, to be applied upon the approval by
the Community of an international agreement on climate
change. “It is clear from the second paragraph of Article
1 of and recital 3 in the preamble to Directive 2003/87
that, after its amendment by Directive 2009/29, Directive
2003/87 provides for the reductions of greenhouse gas
emissions to be increased so as to contribute to the levels
of reductions that are considered scientifically necessary
to avoid dangerous climate change. As is apparent from
those provisions and recitals 3, 5, 6 and 13 in the preamble to Directive 2009/29, the principal objective of Directive 2003/87, after its amendment by Directive 2009/29,
is to reduce by 2020 global greenhouse gas emissions in
the European Union by at least 20% compared to 1990
levels.”5
2. Main provisions of the Directive
Due to the limited scope of this study, this section discusses only the most significant changes in the Community GHG emission allowance trading scheme that are
introduced in the Directive.
The Directive changes the principles pertaining to
the number of allowances in the Community6. Pursuant
to Article 9 of the amended Directive 2003/87/EC, the
Community-wide quantity of allowances issued each year
starting in 2013 will decrease in a linear manner beginning
from the mid-point of the period from 2008 to 2012. The
quantity will decrease by a linear factor of 1.74 % compared to the average annual total quantity of allowances
issued by Member States in accordance with the Commission Decisions on their national allocation plans for the
period from 2008 to 2012. Moreover, in respect of installations carrying out activities listed in Annex I, which are only
included in the Community scheme from 2013 onwards,
Member States have to ensure that the operators of such
installations submit to the relevant competent authority
duly substantiated and independently verified emissions
data in order for them to be taken into account for the
Deadline for the transposition
of the Directive 2009/29/EC
passed on 31.XII.2012. Directive
has not been fully transposed.
adjustment of the Community-wide quantity of allowances
to be issued.
The Directive also introduces a new principle on the auctioning of emission allowances. Prior to this amendment,
the Directive 2003/87/EC provided for the principle of free
allocation of emission allowances by Member States. Pursuant to Article 10 (1) of the amended Directive 2003/87/
EC, from 2013 onwards, Member States will auction all
allowances which are not allocated free of charge in accordance with Article 10a and 10c.
Following the principle of the auctioning of allowances,
the Directive specifies the obligations of Member States
regarding the allocation of revenues from the auctions.
Article 10 (3) of the amended Directive 2003/87/EC states
that Member States determine the use of revenues generated from the auctioning of allowances. At least 50% of
these revenues, or their equivalent in financial value,
should be used for one or more of the following: a) to
reduce GHG emissions; b) to develop renewable energies
as well as other technologies contributing to the transition to a safe and sustainable low-carbon economy and to
help meet the commitment of the Community to increase
energy efficiency by 20 % by 2020; c) measures to avoid
deforestation and increase afforestation; d) forestry sequestration in the Community; e) the environmentally safe
capture and geological storage of CO2; f) to encourage a
shift to low-emission and public forms of transport; g) to finance research and development in energy efficiency and
1. Directive 2009/29/EC of the European Parliament and of the Council of 23 April 2009 amending Directive 2003/87/EC so as to improve and extend the greenhouse gas emission allowance trading scheme of the Community (OJ L 140, 5.06.2009, p. 63) (hereinafter referred to as The Directive).
2. After the entry into force of the Treaty of Lisbon – Article 191 (2) of the Treaty on the Functioning of the European Union.
3. The judgement of 7 March 2013 in the case T-370/11, Republic of Poland v European Commission, point 90. In this case Poland appealed against the Commission Decision 2011/278/EU determining transitional Union-wide rules for the harmonised free allocation of emission allowances pursuant to Article 10a of
Directive 2003/87/EC. The Court dismissed the complaint and Poland did not appeal. See also judgements on the National allocation plan for emission allowances that was adopted in order to implement Directive 2003/87/EC: the judgement in the case T-183/07 Republic of Poland v Commission of the European
Communities and the judgement in the case C-504/09, won by Poland.
4. Consolidated text: http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CONSLEG:2003L0087:20090625:PL:HTML
5. The judgement of 7 March 2013 in case T-370/11, The Republic of Poland v Commission, point 68.
6. After the entry into force of the Treaty of Lisbon – “in the European Union”.
13
clean technologies in the sectors covered by the Directive;
h) measures intended to increase energy efficiency and
insulation of buildings; i) to cover administrative expenses
of the management of the Community scheme.
The Directive also introduces exceptions to the principle of the auctioning of emission allowances. Article 10a of
the amended Directive 2003/87/EC specifies transitional
Community-wide rules for harmonised free allocation. The
great majority of the provisions contained in this article
define the competences of the European Commission with
regard to the adoption of implementing measures.
These provisions do not have to be transposed into the
national legal systems of the respective Member States.
Some of them, however, have to be implemented by
Member States. This in particular refers to the significant
restriction that no free allowances are granted to electricity
generators, installations for the capture of CO2, pipelines for transport of CO2 or to CO2 storage sites (Article
10a (3)) as well as for any electricity production by new
entrants (Article 10a (7) (3)) and for installations that have
ceased their operations (Article 10a (19)). Free allowances
can be granted for district heating networks and highefficiency co-generation (Article 10a (4)).
If a Member State intends to adopt financial measures
in favour of sectors or subsectors determined to be exposed to a significant risk of carbon leakage due to costs
relating to greenhouse gas emissions passed on in electricity prices, they have to fulfil the requirements defined in
Article 10a (6). This requirement of the amended Directive
2003/87/EC has to be transposed to national legislation.
Pursuant to Article 10a (11) of this Directive, the amount
of allowances allocated free of charge on the basis of this
provision should reach 80% of the quantity determined
in accordance with the implementing measures adopted
by the Commission. Thereafter the free allocation has to
decrease each year by equal amounts, resulting in 30 %
free allocation in 2020, with a view to reaching no free allocation in 2027.
Article 10 c of the amended Directive 2003/87/EC
specifies another significant exception to the principle of
primary auctioning of GHG emission allowances. Pursuant
to this article, by derogation from the auctioning principle,
some Member States may give a transitional free allocation to installations for electricity production in operation
by 31 December 2008 or to installations for electricity production for which the investment process was physically
14
initiated by the same date. This exception refers to new
Member States, including Poland. This results from the
conditions specified in Article 10 c (a-c) of the amended
Directive 2003/87/EC. The Member State concerned has
to submit to the Commission a national plan that provides
for investments in retrofitting and upgrading of the infrastructure and clean technologies.
The national plan also has to provide for the diversification of the energy mix and sources of supply for an
amount equivalent, to the extent possible, to the market
value of the free allocation with respect to the intended
investments. Pursuant to Article 10c (5) of the amended
Directive 2003/87/EC, a Member State that intends to
allocate free allowances has to, by 30 September 2011,
submit to the Commission a relevant application. The
Commission assesses the application and may reject it,
or any aspect thereof, within six months of receiving the
relevant information.
Pursuant to Article 11 of the amended Directive
2003/87/EC, each Member State has to publish and
submit to the Commission, by 30 September 2011, the
list of installations covered by this Directive in its territory
and any free allocation to each installation in its territory.
By 28 February each year, competent authorities specify
the quantity of allowances that are to be allocated for that
year, calculated in accordance with Articles 10, 10a and
10c of the amended Directive 2003/87/EC.
Other important amendments introduced by the Directive to Directive 2003/87/EC refer to: use of CERs and
ERUs from project activities in the Community scheme
before the entry into force of an international agreement
on climate change (Article 11a), the validity of allowances
(Article 13), the monitoring and reporting of emissions (Article 14), procedures for the unilateral inclusion of additional activities and gases (Article 24), the exclusion of small
installations subject to equivalent measures (Article 27),
adjustments applicable upon the approval by the Community of an international agreement on climate change
(Article 28), a report to ensure the better functioning of the
carbon market (Article 29).
Apart from this, the Directive introduces to Directive
2003/87/EC provisions on: the disclosure of information and professional secrecy (Article 15a), harmonised
rules for projects that reduce emissions (Article 24a) and
measures in the event of excessive price fluctuations
(Article 29a).
3. When the Directive came into force
Pursuant to its Article 4, the Directive came into force on
25 June 2009.
4. Deadline for transposing the Directive in the Polish legal system
According to Article 2 of the Directive, Member States
have to bring into force the laws, regulations and administrative provisions necessary to comply with the Directive by 31 December 2012. Certain regulations should
have been transposed even earlier. This refers to Article
9a (2) (the provision to the relevant authority of data on
emissions from installations included in the Community
scheme from 2013 so as to take them into consideration
for the adjustment of the Community-wide quantity of
allowances to be issued) and Article 11 (publishing and
submitting to the Commission a list of installations and
any free allocations to them) of the amended Directive
2003/87/EC, as for which laws, regulations and administrative provisions should have been brought into force by
31 December 2009.
5. Transposition
The Act of 28 April 2011 on the greenhouse gas emission allowance trading scheme came into force on 21
June 2011 (Dz.U. of 2011, No 122, item 695, hereinafter
referred to as: The Act of 28 April 2011).7
Footnote 1 of the Act of 28 April 2011 states that the
provisions of the Act implement the following Directives:
“(...) 4) Directive 2009/29/EC of the European Parliament
and of the Council of 23 April 2009 amending Directive
2003/87/EC so as to improve and extend the greenhouse
gas emission allowance trading scheme of the Community
(OJ L 140, 5.06.2009, p. 63).” This suggests that the Act
of 28 April 2011 provides a full transposition into Polish
legislation of the Directive 2009/29/EC. In reality this is not
the case.
In fact, the Act of 28 April 2011 does not transpose to
Polish legislation the most significant provisions of Directive 2009/29/EC. It does not transpose Article 3 (h) of the
amended Directive 2003/87/EC, which defines the term
“new entrant”. Pursuant to the amended Directive 2003/87/
EC, this terms means:
“any installation carrying out one or more of the activities indicated in Annex I, which has obtained a greenhouse gas emissions permit for the first time after 30 June
2011;
any installation carrying out an activity which is included in the Community scheme pursuant to Article 24(1)
or (2) for the first time, or
any installation carrying out one or more of the activities indicated in Annex I or an activity which is included in
the Community scheme pursuant to Article 24(1) or (2),
which has had a significant extension after 30 June 2011,
only in so far as this extension is concerned.”
Pursuant to Article 3 (4) of the Act of 28 April 2011, a
“new entrant” means “an operating installation that emits
greenhouse gases included in the scheme, that fulfils the
conditions for being included in the scheme and that has
not been covered in the national allocation plan for the installations included in the scheme or in the register referred
to in Article 21 (2 or 3).” It is enough to compare the scope
7. See: L. Karski, System handlu uprawnieniami do emisji gazów cieplarnianych. Komentarz do ustawy. Wolters Kluwer, Warsaw 2012.
15
of these two definitions to conclude that the Act of 28 April
2011 does not transpose the definition of new entrants, as
specified in the amended Directive 2003/87/EC.
The Act of 28 April 2011 does not transpose to Polish
legislation Article 10 of the amended Directive 2003/87/
EC, which introduces the principle of the auctioning of
emission allowances and defines how revenues from the
auctioning should be allocated. It should be noted that
Articles 29-39 of the Act of 28 April 2011 refer only to the
auctioning of allowances from the national reserve and the
reserve for joint implementation projects if not utilised by
31 December 2012. It is, therefore, rather clear that these
provisions do not introduce obligatory auctioning of emission allowances and that they do not refer to allowances
from after 31 December 2012.
The Act of 28 April 2011 transposes, however, certain elements of the amended Article 10c of the Directive 2003/97/EC. Pursuant to Article 50 (1) of this act, a
permit is issued at an application filed by a subject that is
responsible for the implementation of a fuel combustion
installation with a rated heating capacity of over 20 MW.
Article 50 (2) of this act states that “The implementation of
an installation is initiated on the day that marks the start
of an investment process for this installation. A day prior
to 31 December 2008 on which preparatory work on the
construction site of the installation was initiated shall be
treated as the day that marks the start of an investment
process for the installation.” Therefore, the Act of 28 April
2011 transposes certain elements of Article 10c of the
amended Directive 2003/87/EC, namely, the elements that
could constitute a basis for applying the derogation from
the auctioning scheme that is provided for in Article 10c.
However, even the transposition of this particular provision
is faulty, as Article 10c of the amended Directive 2003/87/
EC was not fully transposed into national legislation. The
Act of 28 April 2011 does not transpose into Polish legislation the following key elements that establish the derogation which is provided for in Article 10c of the amended
Directive 2003/87/EC:
(1) Article 10c (1) – to the extent of the reference to the
principle: “by derogation from Article 10a (1) to (5)”;
(2) Article 10a (7) (3) – to the extent of the specification
that: “No free allocation shall be made in respect of any
electricity production by new entrants”;
(3) Article 3 (h) – to the extent of the definition of a “new
entrant”.
The Act of 28 April 2011 transposes into Polish legislation
only the term “installations for electricity production for
which the investment process was physically initiated by
31 December 2008”, which is used in Article 10c (1) of the
amended Directive 2003/87/EC. Of particular importance,
the Act does not transpose this phrase from Article 10c (1):
“by derogation from Article 10a (1) to (5)”. As a consequence, Article 10a (7) has not been transposed either. It
clearly excludes the possibility of free allowances for new
entrants that generate electricity.
Moreover, the Act of 28 April 2011 lacks a definition of
a new entrant, specified in Article 3 (h) of the amended Directive 2003/87/EC as an installation “which has obtained
a greenhouse gas emissions permit for the first time after
30 June 2011.” Due to these deficiencies in transposition,
Polish legislation does not exclude the possibility of free
allowances for new entrants, i.e. installations that have
obtained their first greenhouse gas emissions permit after
30 June 2011. This partial and faulty transposition has a
significant impact on the implementation of the amended
Directive 2003/87/EC and jeopardizes the achievement of
the Directive’s objectives.
Before finalisation of this study (14 September 2013),
Poland did not adopt any legal act that would transpose
the Directive 2003/87/EC as amended by the Directive 2009/29/EC. The assumptions to the draft act that
transposes Directive 2009/29/EC (of 7 March 2012) is
the only publicly available document in this respect.8 On
14 August 2012, the Government Information Centre
announced that the Council of Ministers had adopted
the assumptions to the draft act on the greenhouse gas
emission allowance trading scheme, submitted by the
Minister of the Environment.9
According to the portal WNP, the act is being prepared by the Government Legislation Centre and in
the opinion of the Ministry of the Environment the new
provisions should come into force in the fourth quarter
of 201310. This date is unrealistic, as the whole legislative process has to be conducted in Parliament. The
aforementioned portal claims that the draft act contains
a provision which states that revenues from allowance
auctioning should be counted as state budget revenues.11
The author of this section is convinced that such a solution does not comply with Article 10 (3) of the amended
Directive 2003/87/EC.12
8. http://www.mos.gov.pl/g2/big/2012_03/c9d2fa1aaf6b2b45d11e6cd0a8975fa8.pdf
9. http://www.ekonomia.rp.pl/artykul/924817.html
10. http://www.wnp.pl/wiadomosci/energetyka-czeka-na-ust-o-handlu-uprawnieniami-do-emisji,206322_1_0_0_0_0.html
12. See: M. Toporek, Argumenty wskazujące na konieczność przeznaczenia przez Polskę środków finansowych ze sprzedaży uprawnień do emisji CO2 w
ramach Europejskiego Systemu Handlu Emisjami (EU ETS) na efektywność energetyczną, ClientEarth, January 2013: http://www.clientearth.org/reports/opiniaprzeznaczeniesrodkow-z-ets-final.pdf
16
It should be noted that the act that is currently binding in Poland in this area is the Act of 17 July 2009 on the
management system for emissions of greenhouse gases
and other substances (Dz.U. of 2009, No 130, item 1070,
as amended, hereinafter referred to as The Act of 17 July
2009). This Act does not transpose Directive 2009/29/EC,
while its scope covers the management of Kyoto units. It
establishes the National Centre for Emission Balancing
and Management. Pursuant to Article 3 (2) (10) (j) of the
Act of 17 July 2009, one of the tasks of the Centre is to
conduct auctions of emission allowances. The aforementioned act, however, does not introduce an obligation to
sell emission allowances at auctions in the trading period
of 2013-2020. Neither does it provide for legislative rules
governing the trade of emission allowances in this period.
Therefore, the Act of 17 July 2009 does not provide a legal
basis to introduce the auctioning of GHG emission allowances, as referred to in the amended Directive 2003/87/
EC. It also does not introduce any legislative basis that
would define how revenues from such auctions should be
allocated. Therefore, it does not transpose Article 10 of the
amended Directive 2003/87/EC.
To sum up, it can be concluded that by the day on
which this report was finalised (14.09.2013), Directive
2003/87/EC had not been transposed into Polish legislation to the extent of the amendments introduced by
Directive 2009/29/EC. This refers to the basic principles
of the latter, in particular, the principle of emission allowance auctioning. Selected elements of Article 10c of the
amended Directive 2003/87/EC have been transposed into
the Polish legal system but only to the extent that allowed
the Polish government to submit to the European Commission the application that is referred to in Article 10c (5)
of the amended Directive 2003/87/EC, i.e. to the extent
of the exception to the principle of emission allowance
auctioning.
6. Implementation
As the amended Directive 2003/87/EC has not been
transposed into Polish legislation, in particular the principle
of emission allowance auctioning, the rule for the allocation of revenues from allowance auctioning and conditions
for the application of the derogation that is provided for in
Articles 10a and 10c, this legal act has not been properly
implemented either.
As far as emission allowance auctioning is concerned,
it should be noted that Poland has made an attempt at
implementing the amended Directive 2003/87/EC without
transposing it. This attempt was made very late – in September 2013. On 2 September 2013, the Ministry of the
Environment announced on its website that the Minister of
Environment had signed an agreement with the European
Energy Exchange (EEX) by virtue of which Poland will
temporarily sell its emission allowances through the Community Auction Platform, which is operated by the EEX.
The National Centre for Emission Balancing and Management will represent Poland in this process. Auctions are
to be held on a weekly basis, starting on 15 September
2013. According to information presented on the website
8. http://www.ekonomia.rp.pl/artykul/924817.html
11. See. M. Toporek, Argumenty wskazujące na konieczność przeznaczenia przez Polskę środków finansowych ze sprzedaży uprawnień do emisji CO2 w ramach Europejskiego Systemu Handlu Emisjami (EU ETS) na efektywność energetyczną, ClientEarth, styczeń 2013: http://www.clientearth.org/reports/opinia-przeznaczeniesrodkow-z-ets-final.pdf 17
of the Ministry of the Environment, this solution will be
maintained until Poland establishes its own, national auction platform. This will be possible only when the new provisions on the emission allowance trading scheme come
into force.13 As the aforementioned mechanism was not in
operation when the report was finalised, it is impossible to
assess its functioning. Due to the missing transposition of
the amended Directive 2003/87/EC, the solution that has
been applied in Poland is temporary and not transparent.
Currently (September 2013) there are no binding
provisions in Poland that would clearly state which installations that fall within the scope of the amended Directive
2003/87/EC have to purchase allowances at auctions
and which are exempted from this obligation. Polish
legislation does not include a clear, statutory obligation to
purchase allowances on auctions. Moreover, there is no
legal basis to enforce this obligation. Therefore, administrative bodies cannot require operators of installations
that fall within the scope of the Directive to purchase their
allowances at auctions.
This lack of transposition is particularly noticeable in
Article 21 of the Act of 28 April 2011, which defines the
obligations of public administration bodies with respect to
the free allocation of allowances. Therefore, it contains
implementing measures for Article 10c of the amended
Directive 2003/87/EC (defining one of the derogations
from the auctioning principle). Other provisions of the
Act of 28 April 2011 also do not introduce a clear obligation to purchase at auctions all allowances that were not
allocated for free pursuant to Article 10a and 10c of the
amended Directive 2003/87/EC, starting from 1 January
2013. Therefore, when operators of installations that fall
within the scope of the obligations that are specified in
the amended Directive 2003/87/EC purchase emission
allowances at the auctions that are conducted by the European Energy Exchange, they do it on a voluntary basis.
It should be, however, noted that, pursuant to Article 87
(1 and 2) of the Constitution of the Republic of Poland,
the sources of universally binding law of the Republic of
Poland include: the Constitution, acts, ratified international agreements and regulations as well as enactments
of local law, in the territory of the body issuing such an enactment.14 It is worth stressing that Article 10 (1) (1) of the
amended Directive 2003/87/EC cannot be applied directly
to operators of installations that fall within the scope of the
Directive. In particular, this provision cannot directly oblige
operators to purchase allowances at auctions. The judgement of the Court of Justice of the European Union in the
case Pubblico Ministero v. Tulio Ratti15 bears significance
for the aforementioned obligation. The Court stated that
13. http://www.mos.gov.pl/artykul/7_aktualnosci/21238_aukcje_polskich_
uprawnien_do_emisji_na_wspolnotowej_platformie_aukcyjnej_prowadzonej_przez_gielde_eex.html
14. The Constitution of the Republic of Poland of 2 April 1997 (Dz.U. of 1997,
No 78, item 482, as amended)
15. Judgement in the case Pubblico Ministero v.Tulio Ratti, 148/78, point 22.
16. OJ L 302/1, 18.11.2010.
17. Foundation ClientEarth Poland appealed against the CO2 emission permits issued for some of the installations that are included in the aforementioned derogation application. These cases have not yet been determined, as the appeals are to be analysed by the Supreme Administrative
Court in Warsaw.
18. h t t p : / / e c . e u r o p a . e u / c l i m a / p o l i c i e s / e t s / c a p / a u c t i o n i n g /
docs/c_2012_4609_pl.pdf
19. On problems with applying in Poland the derogation that is specified
in Article 10c see: M.Stoczkiewicz, The Emission Trading Scheme in
Polish Law. Selected Problems Related to the Scope of Derogation from
the General Rule for Auctioning in Poland, Yearbook of Antitrust and
Regulatory Studies, Vol. 2011, 4(4), see: http://www.yars.wz.uw.edu.pl/
yars2011_4_4/Stoczkiewicz_The_Emission_Trading_Scheme.pdf
18
“a Member State which has not adopted the implementing measures required by the directive in the prescribed
periods may not rely, as against individuals, on its own
failure to perform the obligations which the directive
entails.” The Commission Regulation (EU) No 1031/2010
of 12 November 2010 on the timing, administration and
other aspects of the auctioning of greenhouse gas emission allowances pursuant to Directive 2003/87/EC of the
European Parliament and of the Council establishing a
scheme for greenhouse gas emission allowances trading
within the Community also does not provide for an obligation to purchase emission allowances on auctions that
would be imposed directly on operators.16
Due to the lack of transposition of the Directive’s main
principles, in particular the principle of emission allowance auctioning, the Directive has not been properly
implemented. On the other hand, Poland has transposed
the provisions on the derogations from the auctioning
scheme. As a result, exceptions from the auctioning
principle have been implemented into national legislation. Following the adoption in the Act of 28 April 2011
of the provisions on the derogation that is specified in
Article 10c of the amended Directive 2003/87/EC, the
Polish government initiated measures aimed at obtaining
consent from the EC for the derogation. On 30 September
2011, it sent to the EC an application for a transitional
free allocation for the retrofitting of electricity generation
units, pursuant to Article 10c (5) of the amended Directive
2003/87/EC.17 In its decision of 13 July 2012 the EC did
not voice any objections to the application, provided that:
1) six installations that are specified in Annex I and II are
excluded from the free allocation; 2) 30 installations that
are specified in Annex III are excluded from the national
investment plan.18 According to the justification of the decision, in its national plan, Poland proposed investments
in the retrofitting and upgrading of infrastructure, clean
technologies and the diversification of the energy mix and
energy supplies. However, the Commission believes that
the investments from Annex III do not comply with the
requirements of Article 10c (1) of the Directive. Therefore,
they are ineligible for being financed by the value of the
allowances allocated pursuant to Article 10c.19
In its Guidance document on the optional application of Article 10c of Directive 2003/87/EC (OJ C 99/9,
31.03.2011)20 the European Commission stresses that:
“the free allocation of emission allowances to electricity
generators and the financing of corresponding investments required by Article 10c of Directive 2003/87/EC
would in principle involve State aid within the meaning of
Article 107(1) TFEU.
Pursuant to Article 108(3) TFEU, Member States
must notify measures involving State aid to the Commission. Following notification, Member States may not put
proposed measures into effect until this procedure has
resulted in a final decision by the Commission. The Commission intends to adopt compatibility criteria for assessment of this type of aid in the near future. An application
pursuant to Article 10c(5) of Directive 2003/87/EC, and
any consequent decision by the Commission, is entirely
without prejudice to Member States’ State aid notification
obligations pursuant to Article 108 TFEU, and Member
States should plan for any required State aid notifications
accordingly.”21
This type of aid is assessed pursuant to the Guidelines on certain State aid measures in the context of the
greenhouse gas emission allowance trading scheme post2012 (OJ C 158/4, 5.6.2012).22 These guidelines actually
lower the level of competition and environmental protection, compared with the general principles for State aid in
environmental protection.23 On 18 April 2014, the Polish
government pre-notified the European Commission about
its aid programme of free CO2 emission allowances for the
implementation of the tasks included in the national investment plan.
According to the data available in the Office of Competition and Consumer Protection on 12 June 2013, notification of the programme has not been given.24 To sum up, it
should be concluded that although sufficient implementing
measures have not been initiated to achieve the Directive’s purpose, broad administrative steps have been
taken to ensure that Poland will be able to apply for the
derogation for the electricity sector and grant State aid to
operators of electricity generation installations in the form
of free CO2 emission allocations.
7. The fulfilment of the Directive’s
objective
As the amended Directive 2003/87/EC has not been transposed and implemented into Polish legislation, in particular with respect to the imposition on installation operators
of the obligation to purchase emission allowances at
auctions and the principles for the allocation of revenues
from the auctioning of emission allowances, the objective
of this Directive, as specified in Article 1 (1), has not been
achieved so far (September 2013).
The emission allowance trading scheme that functions
in Poland does not comply with the provisions of the Directive. On the other hand, the transposition and advanced
implementation of Article 10c of the amended Directive
2003/87/EC, with respect to opportunities for granting free
emission allowances for operators of electricity generation
installations, significantly threatens the fulfilment of the objectives specified in Article 1 (2) (a reduction of total GHG
emissions in the EU of at least 20% by 2020, compared
with the level of 1990) and Article 1 (3) (the introduction
of a stricter Community reduction commitment exceeding
20%, to be applied upon the approval by the Community
of an international agreement on climate change).25 It is
worth referring here to the well-grounded case law of the
Court of Justice of the European Union.
The Court states that “during the period prescribed for
transposition of a directive, the Member States to which
it is addressed must refrain from taking any measures
liable seriously to compromise the attainment of the result
prescribed by that directive”.26
8. Infringement procedures initiated
by the European Commission
As Poland did not transpose Directive 2009/29/EC on
time, on 31 January 2013 the European Commission sent
to the Polish authorities a formal notice, based on Article
258 of the Treaty on the Functioning of the European Union. This constitutes the first step in the procedure of filing
a complaint by the Commission to the Court of Justice of
the European Union.
20. h
ttp://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:C:2011:099:
0009:0028:PL:PDF, point 27.
21. See: M.Stoczkiewicz, Pomoc państwa dla przedsiębiorstw energetyczncyh w prawie Unii Europejskiej, Wolters Kluwer, Warsaw 2011, p. 117131.
22. h
ttp://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:C:2012:158:
0004:0022:PL:PDF
23. S
ee: M.Stoczkiewicz, Free allocation of EU ETS emission allowances to
installations for electricity production from a State aid law perspective,
Environmental Economics, Vol. 2012, 3(3).
24. h
ttp://www.uokik.gov.pl/informacje_o_decyzjach_komisji_europejskiej2.
php
25. A detailed analysis of the possibility of fulfilling reduction targets goes
beyond the scope of this study.
26. J udgement in the combined cases: from C-165/09 to C-167/09 Stichting
Natuur en Milieu, point 78; judgement in the case C-129/96 Inter-Environment Wallonie, point 45; judgement in the case C-14/02 ATRAL, point
58; judgement in the combined cases C-261/07 and C-299/07 VTB-VAB
and Gallatea, point 38.
19
Directive
on the promotion
of the use
of energy
from renewable
sources1
(Power)
Robert Rybski
20
1. The objectives of the RES directive
In accordance with recitals 1-5 of the RES Directive preamble, the real effect of using renewable energy sources
will be as follows:
a. a substantial improvement in energy security due to
decreased dependence of EU Member States on energy imports and the dominance of small and mediumsized energy producers, stabilising the functioning of
the grid system;
b. d
ecentralised energy production which has many
benefits, including the utilisation of local energy sources,
increased local security of energy supply, shorter transport
distances and reduced energy transmission losses;
c. opportunities for employment and regional development, especially in rural and isolated areas. Decentralisation of energy production also fosters community development and cohesion by providing income sources
and creating jobs locally;
d. p
romotion of technological development and
innovation;
e. reduction of greenhouse gas emissions, which will
ensure EU compliance with the Kyoto Protocol;
f. development of small and medium-sized enterprises
(SMEs) – local and regional SMEs do not only deal with
renewable energy production, they are usually involved
in the investment process and maintenance of the grid,
which will contribute to sustainable economic growth.
g. m
eeting of national targets for energy from renewable sources in gross final energy consumption;
h. e
mphasis of the importance of renewable energy
potential that lies in increased energy efficiency and
energy savings. Energy efficiency and energy savings
are the most effective way to meet the national target
as they enable a very fast increase of RES share in
the national energy mix. Decreased energy demand,
RES capacity maintained at a constant level, low RES
operating costs and the obligation to provide for priority
access to the grid-system of electricity produced from
renewable energy sources mean a higher share of RES
in national gross final energy consumption – priority access to the grid-system and the merit order result in displacing electricity produced from fossil fuels from power
exchanges. Energy efficiency and energy savings only
speed up the process.
i. M
oreover, according to recital 26 of the RES directive, it is desirable that energy prices in the European Union reflect the external costs of energy
production and consumption, including, as appropriate, environmental, social and healthcare costs. The
achievement of this EU objective is possible to the fullest
extent with renewable energy sources which generate
virtually no external costs.
j. P
ursuant to the directive, the EU is to promote the
use of energy from renewable sources for as long
as electricity prices in the internal market do not reflect
the full environmental and social costs and benefits of
energy sources used2.
k. T
he use of agricultural material such as manure,
slurry and other animal and organic waste for biogas
production has, in view of the high greenhouse gas
emission saving potential, significant environmental
advantages in terms of heat and power production and
its use as biofuel.
Another objective of the Directive is to continue the
implementation of national development measures and
activities introduced on the basis of Directive 2001/77/
EC (hereinafter – “I RES Directive”3) – and it is from this
particular viewpoint that the provisions of the RES Directive should be interpreted. The objective is to be achieved
by means of an adequate transposition of the measures
set out in the Directive. Regulation stability is to provide
an incentive for the business community to make rational,
sustainable investment in the renewable energy sector
which are capable of reducing its dependence on imported
fossil fuels and boost the use of new energy technologies.
However, even if the solutions provided for in both
directives in question are similar, under no circumstances
should national solutions adopted on the basis of Directive
2001/77/EC continue being applied without prior confirmation that a significantly higher standard has not been
established by the RES Directive – this kind of mistake
was made by Polish legislators in the case of Article 16 of
the RES Directive4.
2. Main provisions of the RES Directive
The aim of the RES Directive is to establish a framework
for the promotion of energy from renewable sources. The
harmonisation comprises an appropriate legal framework
1. Directive 2009/28/EC of the European Parliament and of the Council of
23 April 2009 on the promotion of the use of energy from renewable sources and amending and subsequently repealing Directives 2001/77/EC
and 2003/30/EC (OJ L 140/16. 5.6.2009. Hereinafter: “RES Directive”.
2. See point 27 of the preamble.
27 September 2001 on the promotion of electricity from renewable energy
sources in the internal electricity market (OJ L 283/33).
4. See: Correspondence table between the act on renewable energy sources and the RES Directive, page 43 and subsequent pages; at: http://legislacja.rcl.gov.pl/docs//2/19349/69284/69285/dokument51406.pdf?lastUpdateDay=09.08.13&lastUpdateHour=15%3A45&userLogged=false&dat
e=sobota%2C+10+sierpie%C5%84+2013
21
of the RES Directive passed
on 5.XI.2010. Untill 14.IX.2013
Directive has not been fully
transposed.
as well as adequately conducted national energy and
climate policy. On that account, the main provisions of the
directive shall be divided into three groups according to
the implementation requirements they entail.
The first group (I.) includes provisions which establish
binding targets for the share of RES in the energy mix.
The second group (II.) includes provisions which are
subject to strict transposition as part of the process of
establishing a uniform legal framework in the European
Union. The third group (III.) comprises those provisions
with regard to which Member States are granted greater
freedom as to how they implement them in the national
legal system – achieving the result is crucial and much
more important than the uniformity of legal frameworks
within the EU. ]
2.I. Provisions establishing binding targets
for the share of RES in gross final energy
consumption
2.1.1. Mandatory national overall target
National targets for the share of energy from renewable
sources in gross final consumption of energy in 2020 are
set out in Article 3 (1) of the RES Directive and in part
A of Annex I thereof. As far as Poland is concerned, the
share must reach at least 15%, which does not refer to
installed or available capacity, but to capacity which is
actually used.
2.1.2. Indicative trajectory
Another binding element of the directive is the indicative
trajectory tracing a path towards the achievement of final
mandatory targets in 2020. Pursuant to Article 3(2) of the
RES Directive, in the two-year periods preceding the year
2020, the share of energy from renewable sources must
equal or exceed that shown in the indicative trajectory
set out in part B of Annex I5. Consequently, the targets
for Poland look as follows: 8,76% (2011-2012); 10,14%
(2013-2014); 11,31% (2015-2016); 12,87% (2017-2018).
2.1.3. Introduction of measures effectively
designed to ensure the appropriate
share of RES energy
The two requirements above should be viewed through
the prism of Article 3(2) of the RES directive, pursuant to
which Member States must introduce measures effectively designed to ensure that the share of energy from
renewable sources equals that set out for the 2020 target
and shown in the indicative trajectory. It means that each
Member State is required to establish an appropriate legal
framework and to take appropriate steps to achieve the
above mentioned targets.
2.2. Provisions subject to strict transposition
2.2.1. Access to the grid-system of electricity
produced from renewable
energy sources
As far as priority access to the grid system is concerned,
the RES Directive provides for a set of specific measures
and actions to be taken by Member States:
a. G
uaranteed transmission and distribution of electricity produced from renewable sources
Pursuant to Article 16 (2)(a) of the RES Directive, Member States are obliged to ensure that transmission system operators and distribution system operators in their
territory guarantee the transmission and distribution of
electricity produced from renewable energy sources.
This provision is subject to requirements relating to the
maintenance of the reliability and safety of the grid, which
definitely constitute a positive obligation of the state. This
means that national regulatory authorities are obliged to
verify that the systems used by economic operators are
accurate, reliable and protected against fraud.
b. Priority or guaranteed access of electricity produced
from renewable sources to the grid-system
Pursuant to Article 16(2)(b) of the RES directive,
Member States are obliged to provide for either priority
5.. Pursuant to part B of Annex I to the RES Directive: “The indicative trajectory referred to in Article 3(2) shall consist of the following shares of energy from renewable sources: S2005+ 0,20 (S2020— S2005), as an average for the two-year period 2011 to 2012, S2005 + 0,30 (S2020— S2005), as an average for
the two-year period 2013 to 2014, S2005+ 0,45 (S2020— S2005), as an average for the two-year period 2015 to 2016; and S2005+0,65 (S2020— S2005),
as an average for the two-year period 2017 to 2018, where: S2005= the share for that Member State in 2005 as indicated in the table in part A, and S2020=
the share for that Member State in 2020 as indicated in the table in part A.”.
22
access or guaranteed access to the grid-system of
electricity produced from renewable energy sources.
This means the establishment of a system guaranteeing
permanent access of RES electricity to the grid-system.
This provision is also subject to the requirements specified in Article 16(2) of the RES Directive.
c. Priority given to generating installations using
renewable energy sources
Pursuant to Article 16(2)(c) of the RES Directive, Member States are obliged to ensure that when dispatching
electricity generating installations, transmission system
operators shall give priority to generating installations
using renewable energy sources in so far as the secure
operation of the national electricity system permits and
based on transparent and non-discriminatory criteria.
Member States are further obliged to ensure that appropriate grid and market-related operational measures
are taken in order to minimise the curtailment of electricity produced from renewable energy sources. This
provision is also subject to the requirements specified in
Article 16(2) of the RES Directive.
d. P
reventing inappropriate curtailments
Pursuant to Article 16(2)(c) in fine of the RES Directive, any curtailments to the connection of new renewable energy installations to national grid-systems are
considered inappropriate. Member States are obliged to
ensure that the responsible system operators indicate
which corrective measures they intend to take in case
such inappropriate curtailments occur. This means
that Member States must require system operators to
prevent any curtailments to the connection of new renewable energy installations to transmission grids. This
provision is also subject to the requirements specified in
Article 16(2) of the RES Directive.
The obligation to indicate corrective measures clearly
suggests that operators are responsible for maintaining
the safety and reliability of the grid and this cannot be
the basis for rejecting the request for a grid connection.
e. Making public the standard rules relating to the
bearing and sharing of grid connection costs
In order to ensure the transparency of the connection
process, pursuant to Article 16 (3) sentence 1, Member
States are obliged to require transmission system operators and distribution system operators to set up and
make public their standard rules relating to the bearing
and sharing of the costs of technical adaptations. Examples of such technical adaptations include grid connections and grid reinforcements, improved operation of the
grid and rules on the non-discriminatory implementation
of the grid codes.
Sentence 2 of Article 16(3) further specifies that the
rules must be based on objective, transparent and nondiscriminatory criteria taking particular account of all
the costs and benefits associated with the connection
of those producers to the grid and of the particular circumstances of producers located in peripheral regions
and in regions of low population density. Such benefits
include lower transmission costs due to reduced energy
transmission losses, lower investment in infrastructure
due to frequent connections to low- and medium-voltage grids.
f. The bearing and sharing of grid connection costs by
system operators
Pursuant to Article 16(4) of the RES directive, transmission system operators and distribution system operators
may be required to bear, in full or in part, the costs of
RES grid connections. Member States are obliged to
review and take the necessary measures to improve
the frameworks and rules for the bearing and sharing of
these costs – the first review was to be conducted by 30 June 2011, further reviews are to be conducted every
two years thereafter.
The solution referred to herein is specified more precisely in Article 16(6) of the RES directive: “The sharing
of costs referred to in paragraph 3 shall be enforced by a
mechanism based on objective, transparent and non-discriminatory criteria taking into account the benefits which
initially and subsequently connected producers as well
as transmission system operators and distribution system
operators derive from the connections.”
g. O
bligations of TSOs and DSOs to provide information to new producers of RES energy
Moreover, the directive requires transmission system
operators and distribution system operators to provide
any new producer of energy from renewable sources
wishing to be connected to the system with the comprehensive and necessary information required. Pursuant
to Article 16(5) par. 1 letters (a) to (c), the information to
be provided includes:
- a comprehensive and detailed estimate of the costs
associated with the connection;
- a reasonable and precise timetable for receiving and
processing the request for grid connection;
- a reasonable indicative timetable for any proposed
grid connection.
Article 16(5) sentence 2 further stipulates that producers
23
of electricity from renewable energy sources wishing to be
connected to the grid may be allowed by Member States
to issue a call for tender for the connection work.
h. C
alculation of transmission and distribution tariffs
In accordance with Article 16(7) of the RES Directive,
Member States are obliged to ensure that the charging
of transmission and distribution tariffs does not discriminate against electricity from renewable energy sources.
Tariffs charged by system operators for the transmission
and distribution of electricity from plants using renewable energy sources should reflect the realisable cost
benefits resulting from the plant’s connection to the network. Such cost benefits could arise from the direct use
of the low-voltage grid. As is pointed out in sentence 1
of Article 16(7) in fine of the RES Directive, the charging of transmission and distribution tariffs should not
discriminate against electricity from renewable sources,
including in particular electricity from renewable energy
sources produced in peripheral regions, such as island
regions, and in regions of low population density.
The standard set out by the RES Directive is very
clear: being an EU Member State, Poland is obliged to
provide priority access to the grid-system for electricity
produced from renewable energy sources. This access
may be curtailed, however, in order to guarantee the
security of the national electricity system and security
of energy supply, in which case Member States must
ensure that the system operators responsible for taking
such curtailment measures initiate appropriate corrective action to adapt the grid to new energy sources.
This standard also stipulates that while calculating the
costs to be borne by new producers of energy from
renewable sources wishing to be connected to the
system, due account should be taken of the benefits
brought by the decentralised production of electricity.
2.2.2. Statistical transfers
The directive also provides for a mechanism of statistical
transfers. Pursuant to Article 6(1), Member States may
agree on and may make arrangements for virtual transfers
of a specified amount of energy. The “transferred” amount
of energy is deducted from the amount of energy from
renewable sources that is taken into account in measuring
the compliance of the Member State making the transfer and added to the amount of energy from renewable
sources that is taken into account in measuring compliance by another Member State accepting the transfer.
This regulation requires the establishment of appropriate
provisions in national law.
2.2.3. Guarantees of origin
Another instrument is introduced for the purpose of proving to the final customer that a given share or quantity of
energy was produced from renewable sources. Pursuant
to Article 15 of the directive, Member States are obliged to
ensure that a guarantee of origin (GO) is issued for each 1
MWh unit of energy. Guarantees of origin have no function
in terms of target compliance, they should also be distinguished from statistical transfers.
While issuing GOs for electricity from renewable
sources is obligatory, Member States may also arrange for
guarantees of origin to be issued in response to a request
from producers of heating and cooling from renewable
energy sources. Guarantees of origin have no function in
terms of target compliance or the calculation of gross final
consumption of energy from renewable sources.
24
2.2.4. National action plan
Pursuant to Article 4 of the RES Directive, each Member
State is obliged to adopt a renewable energy action plan.
The plans should set out adequate measures to be taken
to achieve national targets by 2020. When evaluating its
expected gross final consumption of energy in its national
renewable energy action plan, each Member State should
assess the contribution which energy efficiency and energy saving measures can make to achieving its national
targets. The effects of planned statistical transfers or joint
projects should also be taken into account.
2.2.5. Definitions used in the RES Directive
The national law of all EU Member States must also establish a uniform terminology framework. The following key
terms have been defined in the RES Directive:
a. ‘energy from renewable sources’ means ‘energy from
renewable non-fossil sources, namely wind, solar, aerothermal, geothermal, hydrothermal and ocean energy,
hydropower, biomass, landfill gas, sewage treatment
plant gas and biogases’;
b. ‘biomass’ means ‘the biodegradable fraction of products, waste and residues from biological origin from
agriculture (including vegetal and animal substances),
forestry and related industries including fisheries and
aquaculture, as well as the biodegradable fraction of
industrial and municipal waste’;
c. ‘gross final consumption of energy’ means ‘the
energy commodities delivered for energy purposes to
industry, transport, households, services including public services, agriculture, forestry and fisheries, including
the consumption of electricity and heat by the energy
branch for electricity and heat production and including
losses of electricity and heat in distribution and transmission’;
d. ‘bioliquids’ means ‘liquid fuel for energy purposes
other than for transport, including electricity and heating
and cooling, produced from biomass’.
2.3. Provisions that enable effective
implementation
2.3.1. Simplification of administrative
procedures, regulations and codes
Pursuant to Article 13 of the RES Directive, Member
States are obliged to ensure that any national rules
concerning the administrative procedures, regulations
and codes applied to energy from renewable sources are
The Member State is to
ensure priority or guaranteed
access to the electricity
network produced from
renewable energy sources.
adequately simplified and less burdensome, i.e. that they
are proportionate and necessary.
It is particularly important in the case of non-commercial projects meant, in full or in part, for private production
or constituting an element of passive house design6. As
for micro- and small RES installations, which are usually
constructed by natural persons, homeowner associations
or housing cooperatives, less burdensome administrative
barriers may be a decisive factor in encouraging these
entities to make such investment.
3. Entry into force
Pursuant to Article 28, the directive entered into force on
25 June 2009.
4. National implementation
Pursuant to Article 27, Member States were obliged to
bring into force the laws, regulations and administrative
provisions necessary to comply with the directive by 5 December 2010.
5. Transposition.
On the day of the completion of this publication, appropriate measures giving force to the energy-related provisions
of the RES Directive had not been fully and adequately
implemented into the Polish legal system. Some of the
energy-related provisions had already been transposed
with an almost three-year delay by the so-called “Small
Tri-Pack”, i.e. an act of 26 July 2013 amending the Energy
Law Act and certain other acts (Journal of Laws of the
Republic of Poland, No 0, item 984), which entered into
force on 11 September 2013. Missing statutory solutions
include:
● Priority access to energy from renewable sources, especially as regards all RES connections, not only microinstallations;
● The removal of administrative barriers for all RES connections, not only micro-installations.
5.1. Provisions establishing binding targets
for the share of RES in gross final energy
consumption
5.1.1. Mandatory national overall 2020 target
and indicative 2020 trajectory
Transposition of provisions laid out in Article 3(1) and (2)
of the RES Directive was delayed by almost three years
and it took place when the “Small Tri-Pack” entered into
force. Articles 20b, 20c, 20d, 20e and 20f were added to
the Energy Law Act of 10 April 19977 (Journal of Laws of
the Republic of Poland, No 0, item 1059, as amended).
A legal framework was thus created for determining
the degree of implementation and the planned national
measures necessary to achieve the mandatory national
overall target for the year 2020. Authorities deemed
competent in this respect include the minister in charge
6. S
ee the “SAMOspłacający się dom” (self-repaying house) project by a
coalition of Polish firms under the auspices of BOŚ Bank S.A. Press information from Dziennik Gazeta Prawna daily is available at: http://serwisy.gazetaprawna.pl/nieruchomosci/artykuly/709676,samosplacajacy_sie_dom_slonce_sfinansuje_100_tys_nowych_budynkow.html and:
http://www.cire.pl/item,77115,1,0,0,0,0,0,koalicji-eko-polska-proponujesamosplacajacy-sie-dom.html.
7. Hereinafter: “Energy Law Act”.
25
In this case, the deadline for transposing the optional
provisions of the RES Directive into the Polish legal system was met.
5.2. Provisions subject to strict transposition
5.2.1. Access to the grid-system of electricity
produced from renewable energy
sources
of economic affairs, the minister in charge of the environment (related to bioliquids) and the Chairman of the
Energy Regulatory Office.
5.1.2. Introduction of measures effectively
designed to ensure the appropriate
share of RES energy
Support schemes in Poland rely on Articles 9a, 9e, 91,
32(1)(1) and Articles 33-35 of the Energy Law Act, Regulation of the Minister of the Economy of 14 August 2008 for
the detailed scope of obligations in respect to obtaining
certificates of origin and submitting them for cancellation, payment of a substitution fee, purchase of electricity
and heat from renewable energy sources, as well as the
obligation to confirm data on the amount of electricity
produced from a renewable energy source8, as well as
Regulation of the Minister of the Economy of 4 May 2007
on detailed conditions for the operation of the power
system (Journal of Laws of the Republic of Poland, No 93,
item 623, as amended).
The provisions of the RES Directive referring to priority
access to the grid-system are definitely subject to strict
transposition.
While, under Article 9a(6) of the Energy Law Act, an
official supplier is obliged to purchase electricity produced
from renewable energy sources, the way in which other
provisions are formulated precludes full transposition of
the RES directive provisions referring to priority access
due to the highly limited nature of the possibility of connecting new renewable energy sources to the grid-system.
First of all, not only does the current legal status guarantee no priority access to new renewable energy sources,
but it also limits standard (not priority) access to the gridsystem by introducing certain requirements, i.e. “technical
and economic conditions for connection to the grid-system
and energy supply”, which are not provided for by the RES
Directive9.
When the “Small Tri-Pack” came into force, which happened almost three years after the transposition deadline,
the first priority access solution was added to the Energy
Law Act, but only with reference to micro-installations10.
This is a positive proposal, as it exempts the smallest
renewable sources of energy from an assessment of technical and economic possibilities as a prerequisite for their
connection. Moreover, the costs of installing the safety
system and the tariff metering system are to be borne by
the distribution system operator.
Only this kind of solution may be referred to as a
model that is compliant with the RES Directive since it
provides proper incentives for investors and takes account
of the high degree of adaptability of micro-installations to
grid operation.
It must be pointed out, however, that the RES Directive
does not classify energy sources depending on their size,
capacity or type, but obliges all Member States to ensure
priority or guaranted access to the grid-system for all types
and all sizes of RES installations. The same regulations as
those applying to micro-installations, or very similar ones,
should be extended to all types of RES installations to
ensure full transposition of Article 16 of the RES Directive.
5.2.2. Statistical transfers
The RES Directive allows Member States to agree on and
may make arrangements for virtual transfers of a specified amount of energy, in the form of so-called statistical
transfers. The relevant national regulations only came
into force on 11 September 2013 with the passing of the
“Small Tri-Pack”. By adding Articles 55a, 55b and 55c to
the Energy Law Act, a legal framework was created which
8. Journal of Laws of the Republic of Poland, No 156, item 969, as amended.
9. See points 28-70 of the legal analysis “The Small Tri-Pack” and Directive 2009/28/EC of 23 April 2009 on the promotion of the use of energy from renewable
sources”, at: http://www.clientearth.org/reports/robert-rybski-trojpak-analiza-ozefinal25062013.pdf
10. It refers to the following provision of Article 7(8d)4: “If an applicant for the connection of a micro installation to the distribution grid is connected to the grid as
a final customer, and the installed capacity of the micro installation which the applicant is seeking to connect is not higher than the capacity specified in the
conditions for connection which were issued, connection to the grid is provided on the basis of a notice of a micro installation connection, such notice to be
submitted to the electricity undertaking to whose network the installation is to be connected, after appropriate safety systems and the tariff metering system
have been installed. Otherwise a micro installation shall be connected to the distribution network on the basis of a connection contract. The costs of installing the safety system and the tariff metering system shall be borne by the distribution system operator.”
26
enables Poland to “buy” or “sell” electricity by means of
a statistical transfer with another EU Member State, the
Swiss Confederation or a European Free Trade Association (EFTA) Member State.
Thus, it should be concluded that the relevant provisions
have been correctly transposed.
5.2.3. Guarantees of origin
For the purpose of indicating to the final customer what
share or quantity of energy in a given supplier’s energy
mix was generated from renewable sources, the Directive introduces a mechanism of guarantees of origin. The
mechanism was only transposed into the Polish legal
system in 2013 when Articles 11g, 11h, 11i, 11j, 11k and
11l were added to the Energy Law Act.
Under this regulation, guarantees of origin must be
issued only for electricity from renewable sources – which
means that the obligation to transpose the Directive was
carried out. It would also be advisable, however, to issue
guarantees of origin for heating and cooling – as these
sources of energy are very important in Poland. A large
portion of heat in Poland comes from the heating grid so
the final customer should be able to find out what share or
quantity of heating or cooling was generated from renewable sources.
5.2.4. National action plan
Pursuant to the RES Directive, each Member State is
obliged to adopt a renewable energy action plan which
should set out adequate measures to be taken to achieve
the national targets.
Not until 2013 was chapter 3a added to the Energy
Law Act11, according to which the minister in charge of
economic affairs is to draw up a “draft plan” that will be
adopted by the resolution of the Council of Ministers and
submitted to the European Commission. It is inappropriate, however, to adapt the “national action plan”12 by passing an internally binding law, i.e. a resolution of the Council
of Ministers, instead of opting for a universally binding law,
i.e. a regulation of the Council of Ministers.
Although the “national action plan” produces no direct
legal effects for entities, such legal effects will be indirect.
The “national action plan” sets out adequate measures to
be taken to achieve national RES targets, so it defines the
national policy in this area.
The “national action plan” does not forecast the
development of renewable energy sources in Poland as
much as the effects of the actions that Poland will take.
Thus, the “national action plan” constitutes a legal act
on the basis of which entities (prosumers, professional
investors, local authorities, farmers, homeowner associations or housing cooperatives) may plan their actions. The
“national action plan” should therefore be adapted as a
universally binding law in accordance with Article 87(1) of
the Constitution of the Republic of Poland.
Pursuant to Articles 20b and 20c, also added to this
chapter of the Energy Law Act, Poland is obliged to submit
a report to the Commission on progress in the promotion
and use of energy from renewable sources, which is in line
with the requirement laid down in Article 22(1)(1) of the
RES Directive.
The key elements of an appropriate report are specified in Article 22(1) (2a) letters b, c, i, j, k of the Energy
Law Act. They have not been fully provided for by Article
20b and 20c of the Energy Law Act, however, so the transposition is not complete in this respect either. The reports
are to be drawn up every two years by the minister in
charge of economic affairs who submits them to the Coun-
11. “National renewable energy action plan and the monitoring of the market for electricity, heat supplied or obtained from renewable energy sources, agricultural biogas, as well as the market for biocomponents, liquid fuels and liquid biofuels used in transport”
12. It is also pointed out in the opinion issued by The Bureau of Research on 19 December 2012, No BAS-WAPEiM-3365/12, on the compliance of renewable
energy sources draft act with the EU law, pp. 17-18.
27
cil of Ministers. Once adopted by the Council of Ministers,
the report is then submitted to the minister in charge of
economic affairs of the European Commission.
5.2.5. Definitions used in the RES Directive
As regards the definition of “bioliquids”, the following definition was added to the Energy Law Act with the entry into
force of the “Small Tri-Pack”:
a. “bioliquids” - liquid biofuel or other renewable fuels as
defined by the Act of 25 August 2006 on Biocomponents
and Liquid Biofuels (Journal of Laws of the Republic
of Poland, No 169, item 1199, as amended), produced
from biomass only, used for energy purposes other than
for transport, including electricity and heating in installations that are compliant with the requirements concerning gas emissions as set out in the Act of 17 July 2009
on the System to Manage the Emissions of Greenhouse
Gases and Other Substances (Journal of Laws of the
Republic of Poland, No 130, item 1070, as amended).”
The transposition is thus incomplete as the part of the
RES Directive referring to transport was to be implemented by an amendment to the Act on Biocomponents
and Liquid Biofuels, which has not taken place so far13.
Since no sustainability criteria have been established in
national legislation (Article 17), pursuant to Article 5(1)
subparagraph 3 of the RES14 Directive, bioliquids cannot
count towards the overall national target for energy from
renewable sources in gross final energy consumption.
Thus, the transposition only seems adequate while in fact,
due to the statutory delegation to regulations that are not
in force, the provisions of the RES Directive have not been
transposed adequately. Meanwhile Poland, with its great
potential for biofuel and bioliquid production, could actively
promote regional development by counting biofuels and
bioliquids towards the national renewable energy target
and by reducing the amount of imported fossil fuels.
Under the RES Directive, a definition of “energy from renewable sources” must be established in such a way that
the source of energy is emphasised. The following definition is applied, however, in the Energy Law Act:
b. “renewable energy source” – a source which uses
wind power, solar power, geothermal energy, sea wave,
sea current and tidal energy, or energy obtained from
the fall of rivers and biomass energy, energy from landfill biogas as well as biogas produced in the process
of sewage disposal and treatment or decomposition of
plant and animal remains”15 (Article 3(20) of the Energy
Law Act).
The correct definition was introduced with a three-year
delay, upon the entry into force of the “Small Tri-Pack”, by
adding Article 20g to the Energy Law Act:
“Energy from renewable sources, referred to in this
chapter, means wind power, solar power, aerothermal, geothermal and hydrothermal energy, sea wave, sea current
and tidal energy, or energy obtained from the fall of rivers
and biomass energy, energy from landfill biogas as well as
13. See: Chapter ”Renewable energy sources (Transport)”.
14. Pursuant to the third subparagraph of Article 5(1): “Subject to the second subparagraph of Article 17(1), biofuels and bioliquids that do not fulfil the sustainability criteria set out in Article 17(2) to (6) shall not be taken into account.”
15. The definition was modified upon entry into force of the ”Small Tri-Pack” and as of 11 September 2013 it reads as follows: ”renewable energy source - a
source which uses wind power, solar power, aerothermal, geothermal and hydrothermal energy, sea wave, sea current and tidal energy, or energy obtained from the fall of rivers and biomass energy, energy from landfill biogas as well as biogas produced in the process of sewage disposal and treatment or
decomposition of plant and animal remains”.
28
biogas produced in the process of sewage disposal and
treatment or decomposition of plant and animal remains.”
Whereas this provision is in line with the requirements
of the Directive in terms of its content, restricting its applicability to just Chapter 3a of the Energy Law Act constitutes an inappropriate legislative measure, which translates into inadequate transposition. The term “energy from
renewable sources” is frequently used in the Directive, e.g.
in Article 15 or 16, and not only in Article 3 – pursuant to
Article 20g of the Energy Law Act, however, this definition
applies only to the extent to which Article 3 of the Directive
has been transposed. It gives rise to an inappropriate legal
loophole resulting from an unnecessarily narrow, inadequate transposition.
Thus, the definition of energy from renewable sources
has not been adequately transposed as its applicability
has been restricted only to this chapter of the Energy Law
Act whereas it should apply to the whole act.
No justification for the
sulution whereby end users
who generate energy
in microinstallations,
will be able to sell it at
a price 20% lower than
any other manufacturer.
5.3. Provisions that enable effective
implementation
5.3.1. Simplification of administrative
procedures, regulations and codes
One of the incentives which encourages investment
in new RES installations is a lack or limited number of
administrative barriers. It is particularly important in the
case of non-commercial projects meant, in full or in part,
for personal production or which constitute an element of
passive house design. As for micro and small RES installations, which are usually constructed by natural persons,
homeowner associations or housing cooperatives, less
burdensome administrative barriers may be a decisive factor in encouraging these entities to make such investment.
Administrative barriers to the development of new RES
installations in Poland result, however, from a number of
legally binding acts, especially those relating to land development plans, environmental impact assessments, and
the obligation (as a rule) to obtain a license for businesses
dealing with electricity generation.
Not until the “Small Tri-Pack” came into force with the
so-called “prosumer amendment”, was Article 13 of the
RES Directive adequately transposed, but only with reference to micro-installations. The solutions implemented
constitute a return to the ideas of the Climate Coalition
which, six months earlier, had presented a package of
suggested amendments to the “Small Tri-Pack” abolishing administrative barriers to the development of microinstallations in Poland: no requirement to obtain a license,
no requirement to run a business and a requirement to
buy back any electricity generated in micro-installations.
However, the proposed amendments were not adopted
then. The final version of the “prosumer amendment” is a
ministerial project which first of all aimed at encouraging
citizens to produce energy for their own use.
The price restriction, allowing the sale of excess electricity at a price equal to 80% of the average competitive
market price in the previous calendar year, is supposed
to be an adequate regulatory stimulus. Nevertheless, the
solution is highly controversial as it does not explain why
those final customers who generate excess electricity and
wish to sell it back to the grid must sell it at a 20% lower
price than the one other producers were able to charge in
the previous year on the spot market. Apart from the suggestions made by the Climate Coalition the amendment
also takes into account electricity produced in micro-installations from agricultural biogas, which is a very positive
proposal.
As regards the desired level of administrative barriers, the ultimate goal is the possibility to complete all
the formalities connected with new installations at “one
window/counter”. The introduced facilitations for prosumers are aimed at transposing the provisions of Article 13
of the RES Directive; however, the transposition is neither
adequate nor complete.
6. Implementation
6.1 National action plan
It is doubtful whether Article 4 of the RES Directive, obliging Member States to adopt renewable energy action
plans, has been implemented. On 7 December 2010 the
29
Council of Ministers adopted a document called: “The National Renewable Energy Action Plan”16, which was then
sent to the European Commission on 9 December 2010 –
however, pursuant to Article 4(2) of the RES Directive, this
should have taken place by 30 June 2010.
As regards the above mentioned resolution of the
Council of Ministers, first of all it lacked an adequate legal
basis, which calls into question the binding force of this
resolution due to the violation of the principle of legality,
inadequate legal form and passing procedure.
The formal irregularities in question are most conspicuous in the “Supplement to the The National Renewable
Energy Action Plan” 17 published on 2 December 2011.
Although the issue is only indirectly regulated by the Directive18, it is advisable to update the National Action Plan
instead of drawing up a “Supplement”, which confirms the
absence of adequate national procedural rules.
6.2. Introduction of measures effectively
designed to ensure an appropriate share
of RES energy
Taking into account the fact that a significant part of the
support is directed at depreciated coal and biomass cocombustion boilers and hydropower plants, it is compromised that the total installed capacity of renewable energy
sources will enable Poland to meet the obligatory target
for its share of energy produced from renewable sources
in gross final energy consumption by 2020, as the support
scheme grants benefits to depreciated installations only.
Moreover, the support scheme does not take into account the type of technology used for generating electricity
from renewable sources and it grants benefits solely to installations generating a certain amount of electricity. Considering the fact that the support scheme depends, among
other things, on the number of green certificates issued
and since a significant part of the support is directed at
depreciated co-combustion boilers and hydropower plants,
these instruments are oversupplied, hence their low price,
which is hardly an incentive to invest in new capacity. It
means that the support system does not fulfil its primary
function of increasing the capacity of RES installations.
Moreover, as of 6 January 2011, when Directive
2010/75/EU of the European Parliament and of the
Council of 24 November 2010 on industrial emissions
(integrated pollution prevention and control)19 came into
force, the refurbishment obligation refers to the majority
of co-combustion installations as it is mainly carried out in
the oldest coal boilers.
Since no refurbishment plans have been drawn up,
the only possibility which is taken into account is to cover
these installations under the Transitional National Plan
which allows a transitional period for some installations as
set out by the directive on industrial emissions. It should
be borne in mind, however, that the Transitional Action
Plan will remain in force only until 2020 when biomass cocombustion capacities covered by the plan will be disconnected from the National Energy System.
Thus, from 2020 at the latest, significant co-combustion sources will no longer be included in the national
energy mix. Even if it were possible to cover a significant
16. S
ee: press release of the Ministry of Economy at:http://www.mg.gov.pl/
Bezpieczenstwo+gospodarcze/Energetyka/Odnawialne+zrodla+energii/
Krajowy+plan+dzialan
17. The document is available at: http://www.mg.gov.pl/files/upload/12326/
uzupe%C5%82nienie%20KPD_www.pdf
18. Article 4(4) subparagraph 2 a contrario.
19. OJ L 334, item 17.
30
part of those installations under the Transitional National
Plan, which could contribute to reaching the 15% target
level of energy produced from renewable energy sources
by 2020, these capacities will no longer be available after
2020 – which also proves that the support scheme is not a
long-lasting one.
This example does not mean that we opt for providing
support to co-combustion technologies for as long as possible, it is used only to emphasise the loss of biomass capacities that results in limiting the possibility of increasing
the share of energy from renewable sources after 2020.
It points to an urgent need to promote the installation of
new RES capacities. Continued financial support provided
to co-combustion installations, which will be shut down
in 2020 at the latest, only increases the loss of capacity
installed in RES.
Thus, as for the support scheme and measures necessary to achieve the national target for the share of energy
produced from renewable sources in gross final energy
consumption, the RES Directive has been implemented
inadequately as the measures taken are ineffective and
fail to fulfil their function.
A reasoned opinion was sent to Poland in March 2012,
and on 21 March 2013 the European Commission referred
Poland to the Court of Justice of the European Union for
“failing to transpose the RES Directive”20.
The Commission has requested the Court’s declaration
that “by failing to adopt the laws, regulations and administrative provisions necessary to ensure compliance with
Directive [...] on the promotion of the use of energy from
renewable sources [...], and in any event by not notifying the Commission of such provisions, the Republic of
Poland has failed to fulfil its obligations under Article 27(1)
of that directive”21.
The Commission proposes a daily penalty of
€ 133,228.80 which is to be paid from the date of the
judgment until the transposition is completed. It means
that about PLN 205 million could have to be paid for
each year until the transposition is completed.
7. Achievement of the Directive’s
objectives
As far as the RES Directive is concerned, the achievement
of its energy-related objectives refers to three areas:
a. reaching the 15% national target for energy produced
from renewable energy sources by 2020, and
b. following the established indicative trajectory towards
the 2020 target for the 15% share of energy produced
from renewable sources in gross final energy consumption;
c. introducing effectively designed legal and political
measures to ensure the achievement of objectives set
out in the preamble to the Directive – it refers not only to
the 20 % target for the share of energy from renewable
sources in overall Community energy consumption to
be achieved by 2020, but also to a transformation of the
whole energy sector and hence shifting the whole EU
economy towards low emissions.
As regards a. and b., there is a high risk that Poland will
neither have reached the national target nor followed
the indicative trajectory due to the fact that sustainable
renewable energy sources are not the only ones to be
promoted.
As regards c., the objective is only partly achievable
because, as has been pointed out herein, the most important provisions of the RES Directive have neither been
adequately transposed nor implemented.
8. Procedures initiated
In January 2011, the European Commission brought
an action against Poland for failing to transpose the
RES Directive and summoned Poland to take corrective
measures.
20. See: the European Commission press release of 21 March 2012 at:
http://europa.eu/rapid/press-release_IP-13-259_pl.htm
21. See OJ C 226, p. 8 of 3 August 2013: http://new.eur-lex.europa.eu/
legal-content/EN/TXT/;jsessionid=pnyvSTtQTVPrmpJLsDRD4ZJ
KzLyHLD2JvKyPQvN0D6snL1d2L7dV!-80792881?uri=uriserv:OJ
.C_.2013.226.01.0008.01.ENG
31
Directive
on the promotion
of the use of energy
from renewable
sources1
(Transport2)
Robert Rybski
32
1. The objectives of the RES directive
While the use of renewable energy sources in transport
is one of the basic objectives of the RES Directive3,
great emphasis is placed on the sustainable production
of biofuels and bioliquids, too. In order to be covered by
the national support scheme and counted towards the
mandatory national target of 10 % for energy from renewable sources in transport, biofuels and bioliquids must fulfil
the sustainability criteria laid down by the Directive. The
increasing worldwide demand for biofuels and bioliquids
should not have the effect of encouraging the destruction of biodiverse lands. Moreover, the mandatory 10%
minimum target for the share of biofules in transport petrol
and diesel consumption by 2020 is to be introduced in a
cost-effective and, above all, long-term way.
2. Main provisions of the RES Directive
relating to transport
2.1. National target for the share of RES
in transport
Pursuant to Article 3(4) of the RES Directive, each Member State is obliged to ensure that the share of energy
from renewable sources in all forms of transport in 2020 is
at least 10 % of the final consumption of energy in transport. The total amount of energy consumed in transport
will be calculated on the basis of electricity, petrol, diesel
and biofuels consumed in road and rail transport. It is
worth pointing out the very positive approach to electric
vehicles. Under subparagraph 2c of Article 3(4), for the
calculation of the electricity from renewable energy sources consumed by electric road vehicles, that consumption
shall be considered to be 2.5 times the energy content of
the input of electricity from renewable energy sources.
of the RES Directive passed
on 5.XI.2010. Untill 14.IX.2013
Directive has not been fully
transposed.
house gas emission savings from the use of biofuels and
bioliquids (Article 17, paragraph 2). The second one refers
to the prohibition of using raw materials obtained from
land with high biodiversity value as defined in Article 17(3).
Biofuels and bioliquids may not be made from made from
raw materials obtained from land with high carbon stock
(wetlands, peatlands and other lands specified in paragraphs (4) and (5) of Article 17. Agricultural raw materials
used for the production of biofuels and bioliquids must be
obtained and cultivated in accordance with the minimum
2.2. Calculating the final gross
energy consumption
The distinction made between biofuels and bioliquids
which may or may not be counted towards the national target is of key importance. According to Article 5(1) subparagraph 3 of the RES Directive, biofuels and bioliquids that
do not fulfil the sustainability criteria set out in Article 17(2)
to (6) shall not be taken into account for the calculation
of the gross final consumption of energy from renewable
sources in transport. Thus, without introducing a mechanism for verification, it is impossible to measure compliance with the requirements of the Directive concerning
national targets.
2.3. Sustainability criteria (SC)
Pursuant to Article 17(1), all raw materials, irrespective of
whether they were cultivated inside or outside the territory of the Community, must fulfil the sustainability criteria
set out in Article 17(2) to (6) of the RES Directive. The
first criteria to be met is to progressively increase green1. Directive 2009/28/EC of the European Parliament and of the Council of 23 April 2009 on the promotion of the use of energy from renewable sources and
amending and subsequently repealing Directives 2001/77/EC and 2003/30/EC (OJ L 140/16. 5.6.2009. Hereinafter: “RES Directive”.
2. Due to the specific character of provisions concerning the use of energy from renewable sources in transport, for clarity purposes those provisions of the Directive relating to renewable energy sources in the energy sector have been discussed separately, also due to their regulatory autonomy in the national legal system.
3. The main objectives include: increased security of the energy supply due to reduced dependence on imported fossil fuels; decentralised energy production;
local production of biofuels will contribute to increased security of the energy supply, shorter transport distances and reduced costs of maintaining a military
presence to ensure the security of sea and land supply routes for oil and gas; reduced emissions of greenhouse gases.
33
requirements for good agricultural and environmental
conditions (Article 17, paragraph 6). Under Article 18(1)
points a-c, in order to show that the sustainability criteria
for raw materials have been fulfilled economic operators
must use a mass balance system and arrange for an adequate standard of independent auditing of the information
submitted, and provide evidence that this has been done.
The Directive provides for a single EU regulatory standard
relating to SC - pursuant to Article 17(8), Member States
may not refuse to take into account, on other sustainability
grounds, biofuels and bioliquids obtained in compliance
with this Article.
3. Entry into force
Pursuant to Article 28, the Directive entered into force on
25 June 2009.
4. National implementation
Pursuant to Article 27, Member States were obliged to
bring into force the laws, regulations and administrative
provisions necessary to comply with the directive by 5 December 2010.
5. Transposition
As at the day of completing this publication (14 September 2013), the provisions of the RES Directive relating to
transport have not been transposed into the Polish legal
system4. The following solutions are missing at the statutory level:
● a mandatory national target for transport and a regulation ensuring the 10% share of RES in transport (Articles
3 and 4);
● the introduction of sustainability criteria for biofuels and
bioliquids (Article 16);
● a method for verifying biofuel and bioliquid compliance
with SC (Article 17);
● a method for calculating the greenhouse impact of biofuels and bioliquids (Article 19);
● ensuring that information is given to the public on the
availability and environmental benefits of all different
renewable sources of energy for transport;
● definitions of: “biomass” [used for the production of biofuels] (as defined in Article 2, point (e) of the RES Directive), “actual value” (Article 2, point (m)), “typical value”
(Article 2, point (n)), “default value” (Article 2, point (o)).
It must be pointed out as well that Directive 2003/30/EC
of 8 May 2003 on the promotion of the use of biofuels
or other renewable fuels for transport, transposed into
the Polish legal system by the act of 25 August 2006 on
biocomponents and liquid biofuels (Journal of Laws of the
Republic of Poland, No 169, item 1199, as amended), was
repealed by Article 26(3) of the RES Directive with effect
from 1 January 2012. Transport-related solutions provided
for by the RES Directive only seem to be in line with Directive 2003/30/EC. This results from the fact that, according to Article 5(1) subparagraph 3 of the RES Directive,
4. The implementation is yet to come with the draft amendment of the act
on biocomponents and liquid biofuels prepared by the Ministry of Economy (version 0.5, draft amendment of 18 June 2013), available at: http://legislacja.rcl.gov.pl/docs//2/73350/73375/73376/dokument77103.pdf?lastUpdateDay=14.08.13&lastUpdateHour=16%3A56&userLogged=false&date
=czwartek%2C+15+sierpie%C5%84+2013). However, the draft had been
an agenda item of the Standing Committee of the Council of Ministers until
15 September.
34
biofuels and bioliquids that do not fulfil the sustainability
criteria are not taken into account when calculating the
share of energy from renewable sources. The criteria were
established by the RES Directive so they have only been
in force since 2009.
Some provisions of the RES Directive had already
been transposed with an almost three-year delay by the
so-called “Small Tri-Pack”, i.e. an act of 26 July 2013
amending the Energy Law Act and certain other acts
(Journal of Laws of the Republic of Poland, No 0, item
984), which entered into force on 11 September 2013.
Nevertheless, as far as renewable energy sources used
in transport are concerned the transposition remains
incomplete. Pursuant to chapter 3a added to the Energy
Law Act of 10 April 19975 (Journal of Laws of the Republic
of Poland, No 0, item 1059, as amended), the minister in
charge of economic affairs is to draw up a “draft plan” that
will be adopted by a resolution of the Council of Ministers
and submitted to the European Commission. It is dubious, however, from the legislative point of view, to adapt
the “national action plan”6 by passing an internally binding
law, i.e. a resolution of the Council of Ministers, instead
of opting for a universally binding law, i.e. a regulation
of the Council of Ministers. Pursuant to Articles 20b and
20c, also added to this chapter of the Energy Law Act,
Poland is obliged to submit a report to the Commission
on progress in the promotion and use of energy from
renewable sources, which is in line with the requirement
laid down in the first subparagraph of Article 22(1) of the
RES Directive. The key elements of an appropriate report
are specified in the second subparagraph of Article 22(1)
points (a), (b), (c), (i), (j), (k) of the Energy Law Act. They
have not been fully provided for by Article 20b and 20c of
the Energy Law Act, however, so the transposition is not
complete in this respect either.
6. Implementation
The lack of transposition of the RES Directive provisions relating to transport has resulted in a lack of their
implementation into the Polish legal system. It is doubtful whether, despite the lack of transposition, Article 4
of the RES Directive, obliging Member States to adopt
renewable energy action plans, has been implemented.
On 7 December 2010 the Council of Ministers adopted a
document called: “The National Renewable Energy Action
Plan”7, which was then sent to the European Commission
on 9 December 2010 – however, pursuant to Article 4(2)
of the RES Directive, this should have taken place by 30
June 2010.
When assessing the content of the National Action
Plan relating to transport, what must be pointed out above
all is the incorrect approach to calculating the expected
consumption of electricity from renewable sources in
transport pursuant to the second subparagraph of Article
3(4), points (a) to (c).
5. “National renewable energy action plan and the monitoring of the market
for electricity, heat supplied or obtained from renewable energy sources,
agricultural biogas, as well as the market for biocomponents, liquid fuels
and liquid biofuels used in transport”
6. It is also pointed out in the opinion issued by The Bureau of Research on
19 December 2012, No BAS-WAPEiM-3365/12, on the compliance of renewable energy sources draft act with the EU law, pp. 17-18.
7. See: press release of the Ministry of Economy at:http://www.mg.gov.pl/
Bezpieczenstwo+gospodarcze/Energetyka/Odnawialne+zrodla+energii/
Krajowy+plan+dzialan
35
For the calculation of the total amount of energy from
renewable sources consumed in transport, electricity produced from renewable sources and consumed in all forms
of transport should be taken into account8. It refers to both
road and rail transport. One of the actions to be taken by
Member States to improve the share of RES in transport
is the promotion of electric mobility. This could involve,
among other things, increasing the availability of electricity-based public transport (trains, trams, trolleybuses).
Considering the fact that railways and municipal transport companies are among the largest electricity consumers in Poland then, if they started using vehicles powered
by electricity produced only from renewable sources, it
would significantly increase the share of RES in transport.
The other aspect of electric mobility involves promoting
the use of road vehicles partly or fully powered by electricity in local public transport and by individuals.
The National Action Plan does not, however, provide for an increased use of electricity from renewable
sources in transport, it is expected that in 2020 99.8% of
energy from renewable sources will be covered by biofuels. While focusing on biofuels may encourage regional
development and boost agricultural production in this
area, considering the significant agricultural potential of
Poland, it would not be inappropriate to establish a much
more ambitious 2020 target than the 10% required by the
Directive (pursuant to Article 3(4), the share of energy
from renewable sources in all forms of transport in 2020
must be “at least 10% of the final consumption of energy
in transport”, which allows Member States to establish
higher national targets).
Providing for an increased use of electricity would
stimulate additional demand for a significant amount of
electricity produced from renewable sources and thus, it
would encourage the development of RES and, through
economies of scale, facilitate the achievement of the national target for the share of RES in the energy industry.
It is also doubtful whether Article 22(1) –(4) of the
RES Directive, obliging Member States to submit a report
on progress in the promotion and use of energy from
renewable sources, has been implemented. Pursuant to
the first sentence of Article 22(1), the report was to be
submitted by 31 December 2011, and every two years
thereafter. A document prepared by the Ministry of the
Economy called “A report on progress in the promotion
and use of energy from renewable sources in Poland in
2009-2010” was passed on 28 February 20129, over two
months after the deadline.
8. Another example, apart from electric vehicles, can be the project undertaken by Lublin University of Technology and Municipal Transport Company in Lublin
involving the installation of photovoltaic panels on the buses, which contributes to reduced fuel consumption. See: http://gramwzielone.pl/energia-sloneczna/7509/panele-fotowoltaiczne-na-dachach-autobusow-miejskich-w-Lublinie
9. See: press release of the Ministry of Economy at: http://www.mg.gov.pl/node/15688.
36
It must be pointed out as well that the “Report…”
contains a fundamental irregularity. According to the
information presented in the report, the overall share of
energy from renewable sources in transport for the year
2010 amounted to 5.9%, which was calculated on the
basis of Article 5 of the RES Directive10. However, since
the provisions of the RES Directive referring to SC have
not been transposed, it means that energy produced from
raw materials whose cultivation fails to fulfil sustainability
criteria cannot be accounted for.
Consequently, the 2010 figures presented in the report
are incorrect because no national mechanisms have been
established for the verification of compliance with the sustainability criteria for the raw materials from which biofuels
and bioliquids are made. Thus, from a formal point of view,
as far as biofuels are concerned, the share of energy from
renewable sources in transport amounted to 0%.
7. Achievement of the Directive’s
objectives
As for the use of renewable energy sources in transport,
the achievement of the Directive’s objectives basically
refers to two elements:
Due to the lack of transposition of the relevant provisions of the RES Directive, Poland fails to ensure that the
biomass used in transport fulfils the sustainability criteria
as no legal framework has been established to ensure the
achievement of this objective.
As part of the implementation of Directive 2003/30/EC
a national mechanism was established thanks to which
the share of energy from renewable sources in transport
amounted to 5.5% in 2010. However, the third subparagraph of Article 5(1) of the RES Directive clearly states
that biofuels and bioliquids that do not fulfil the sustainability criteria are not taken into account in the calculation of
the share of energy from renewable sources in transport.
Thus, until the provisions of the RES Directive relating to
transport are adequately transposed and implemented into
the Polish legal system, it will not be possible to determine
the extent to which currently biofuels used fulfil the SC,
and consequently, to calculate the share of energy from
renewable sources in transport. Thus, given the current
legal status, formally speaking, due to the lack of a transposition of the RES Directive, the share of energy from
renewable sources in transport is close to zero.
a. ensuring that the biomass used fulfils sustainability
criteria;
b. a
chieving the mandatory national target of 10 % for
energy from renewable sources in transport.
10. See: Table 1: “The sectoral (electricity, heating and cooling, and transport) and overall shares of energy from renewable sources” and footnote 4 in “Report
on progress…”, p. 4
37
The CCS Directive
Bolesław Matuszewski
38
1. Full name of the Directive
the Council of 23 April 2009 on the geological storage of
carbon dioxide and amending Council Directive 85/337/
EEC, European
Parliament and Council Directives 2000/60/EC,
2001/80/EC, 2004/35/EC, 2006/12/EC, 2008/1/EC and
Regulation (EC) No 1013/2006 (OJ L 140, 5.06.2009, p.
114) (hereinafter referred to as The CCS Directive or The
Directive).
2.The purpose of the Directive
This Directive establishes a legal framework for the
environmentally safe geological storage of carbon dioxide
(CO2) to contribute to the fight against climate change.
The purpose of environmentally safe geological storage
of CO2 is the permanent containment of this gas in a way
that prevents and, where this is not feasible, eliminates
as far as possible the negative effects and any risk to the
environment and human health.
3.Main provisions of the Directive
Pursuant to Article 4 of the Directive, Member States
which intend to allow geological storage of CO2 in their
territory have to undertake an assessment of the storage
capacity available in parts or in the whole of their territory, including by allowing exploration. The suitability of a
geological formation for use as a storage site should be
determined through a characterisation and assessment of
the potential storage complex and surrounding area pursuant to the criteria specified in Annex I.
Article 5 states that where Member States determine
that exploration is required to generate the information
necessary for selection of storage sites pursuant to Article
4, they have to ensure that no such exploration takes
place without an exploration permit. The procedures for
the granting of exploration permits have to be open to all
entities possessing the necessary capacities.
The permits are granted or refused on the basis of
objective, published and non-discriminatory criteria. The
permits are limited in time (its duration cannot exceed the
period necessary to carry out the exploration for which it
was granted) and space (they are granted for a limited
volume area). The holder of an exploration permit has a
privileged position with regard to exploration as it has the
sole right to explore the potential CO2 storage complex.
Member States have to ensure that no storage site is
operated without a storage permit, that there is only one
operator for each storage site, and that no conflicting uses
are permitted on the site.
Articles 7-9 of the Directive specify the necessary
elements of an application for a CO2 storage permit and
conditions that have to be fulfilled to obtain such a permit.
Article 11 defines minimum requirements for its content as
well as detailed conditions for changes to, and the review,
update and withdrawal of storage permits.
Pursuant to Article 12, a CO2 stream has to consist
overwhelmingly of carbon dioxide. To this end, no waste
or other matter may be added for the purpose of disposing
of that waste or other matter. However, a CO2 stream may
contain incidental associated substances from the source,
capture or injection process and trace substances added
to assist in monitoring and verifying CO2 migration. Concentrations of all incidental and added substances have to
be below levels provided for in this article.
Polish regulations on CCS
limit the possibility of underground storage CO2 only
to demonstration projects.
Member States must ensure that the operator:
a) accepts and injects CO2 streams only if an analysis
of the composition of the streams, including corrosive
substances, and a risk assessment have been carried out, and if the risk assessment has shown that the
contamination levels are in line with the conditions set
out in the Directive;
b) k eeps a register of the quantities and properties of the
CO2 streams delivered and injected, including the composition of those streams.
Article 13 obliges Member States to ensure that the operator carries out the monitoring of the injection facilities, the
storage complex (including where possible the CO2 plume)
and where appropriate the surrounding environment for
the purpose of:
a) comparison between the actual and modelled behaviour
of CO2 and water in the storage site;
b) detecting significant irregularities;
c) detecting significant adverse effects for the surrounding
environment, including in particular on drinking water,
for human populations or for users of the surrounding
biosphere.
Monitoring should be based on a monitoring plan designed
by the operator pursuant to the requirements laid down in
Annex II to the Directive.
The monitoring obligation and other obligations set out
in the Directive are connected to the obligation to report,
which is imposed on the operators in Article 14. Reports
have to include among other things: (i) all results of the
monitoring, (ii) the quantities and properties of the CO2
streams delivered and injected in the reporting period and
(iii) proof of the putting in place and maintenance of the
financial security.
Pursuant to Article 15 of the Directive, Member States
have to ensure that the competent authorities organise a
system of routine and non-routine inspections of all storage complexes within the scope of the CCS Directive for
the purposes of checking and promoting compliance with
the requirements of the Directive as well as monitoring the
effects on the environment and on human health.
Article 16 states that in the event of leakages or significant irregularities, Members States are obliged to ensure
that the operator immediately notifies the competent
authority and takes the necessary corrective measures,
including measures related to the protection of human
health.
In Article 17 the Directive defines reasons for closing
storage sites as well as the post-closure obligations of
operators and Member States. Article 18 regulates the
39
storage, pursuant to the relevant Community provisions.
The Directive introduces a number of amendments
to the already binding EU provisions, in particular to the
Annexes I and II of the Directive 85/337/EEC2 and the
Directive 2001/80/EC3 (hereinafter referred to as the LCP
Directive). It introduces Article 9a to the LCP Directive,
which obliges Member States to ensure that operators
of all combustion plants with a rated electrical output of
300 megawatts or more for which the original construction licence or, in the absence of such a procedure, the
original operating licence is granted after the entry into
force of this Directive have assessed whether the following
conditions are met: (i) suitable storage sites are available,
(ii) transport facilities are technically and economically
feasible, (iii) it is technically and economically feasible to
retrofit for CO2 capture.
If these conditions are met, the competent authority
has to ensure that suitable space on the installation site
for the equipment necessary to capture and compress
CO2 is set aside. The competent authority shall determine
whether the conditions are met on the basis of the abovementioned assessment and other available information,
particularly concerning the protection of the environment
and human health.
4.When the Directive came into force
The Directive came into force on 25 June 2009.
transfer of legal obligations in the area of monitoring and
corrective measures that are set out in the Directive.
Article 19 obliges Member States to ensure that a potential operator provides, within its application for a storage
permit, proof that adequate measures can be established,
by way of financial security or any other equivalent. This
is in order to ensure that all obligations arising under the
permit issued pursuant to this Directive are fulfilled, including closure and post-closure requirements, as well as any
obligations arising from the inclusion of the storage site
under Directive 2003/87/EC1.
Moreover, as, after the transfer of responsibilities, state
institutions may be obliged to cover costs resulting from
CO2 storage, e.g. monitoring costs, Article 20 of the Directive imposes an obligation on Member States to ensure
that the operator makes a financial contribution available
to the competent authority before the transfer of responsibility under a procedure specified by the Member State in
question. This is to ensure that that the CO2 is completely
and permanently contained in geological storage sites
after the transfer of responsibility.
Pursuant to Article 21, Member States have to take
the necessary measures to ensure that potential users are
able to obtain access to transport networks and to storage
sites for the purposes of geological storage of the produced and captured CO2, in accordance with the principles
set out in the Directive.
The Directive obliges Member States to provide the
public with environmental information on geological CO2
5. Deadline for implementing the Directive in the Polish legal system
The Member States were obliged to bring into force the
laws, regulations and administrative provisions necessary
to comply with the Directive by 25 June 2011.
6.Transposition
To date (i.e. 14 September 2013) the Directive has not
been transposed into Polish legislation.
On 30 August 2013 the Polish Parliament adopted the
Act amending the act on geological and mining law and
other acts with draft regulations (hereinafter referred to as
The Act). The purpose of this document is to transpose the
CCS Directive into Polish legislation4.
The following comments can be made on the basis of
the adopted, but not promulgated, Act.
As the justification to the Act shows, the Council of
Ministers has decided to restrict the scope of the regulations on underground CO2 storage in Poland so that they
apply only to demonstration projects5, which is reflected
in Article 1 of the Act. According to the opinion of the
European Commission of 28 February 20136, this restriction remains in accordance with the provisions of the
Directive. Nevertheless, the authors of this report believe
that, considering all the measures adopted in the Act, the
wording of the provisions of the Directive seems not to
permit such a restriction.
1. Now: Directive 2011/92/EU of the European Parliament and of the Council of 13 December 2011 on the assessment of the effects of certain public and private projects on the environment (OJ L 26, 28.01.2012, p. 1).
2. Now: Directive 2011/92/EU of the European Parliament and of the Council of 13 December 2011 on the assessment of the effects of certain public and private projects on the environment (OJ L 26, 28.01.2012, p. 1).
3. Directive 2001/80/EC of the European Parliament and of the Council of 23 October 2001 on the limitation of emissions of certain pollutants into the air from
large combustion plants (OJ L 309, 27.11. 2001, p. 1, Official Journal of the European Union, Polish special edition, chapter 15, volume 6, p. 299).
4. http://orka2.sejm.gov.pl/StenoInter7.nsf/0/1CF5E01B7D6C9274C1257BD700671F4A/%24File/47_d_ksiazka.pdf
5. http://www.sejm.gov.pl/sejm7.nsf/druk.xsp?documentId=1AF3069890614DF7C1257B95003CAB49
6. http://www.mos.gov.pl/g2/big/2013_03/36a4606daa2003104f39ad0ce9af4836.pdf
40
The Directive enables Members States not to allow for
any storage in parts or in the whole of their territory (Article
4 (1) of the Directive). However, neither the purpose of
the Directive nor its provisions justify the restriction of
the scope of the Act only to demonstration projects, with
reference to CO2 storage itself as well as the selection and
analysis of geological structures suitable for CO2 storage.
Due to this restriction the Act prevents the identification
and analysis of geological structures for CO2 storage outside demonstration projects (i.e. for commercial projects
that could apply the CCS technology), which runs counter
to the very idea behind the CCS Directive. As a result, it
becomes impossible to conduct any analyses of potential
CO2 storage sites.
The Act also introduces a number of amendments to
binding regulations with the purpose of fulfilling Poland’s
obligations imposed in the Directive. The most important
ones include:
● the definitions included in the Directive;
● detailed solutions regarding:
● the granting of concessions on the selection and
analysis of storage complexes for underground CO2
storage and CO2 storage,
● monitoring and control,
● the post-closure obligations of investors,
● financial security ensuring that the conditions specified in the concession for underground CO2 storage
are fulfilled,
● CO2 transmission, including access to the CO2 transport network,
● providing to the public environmental information on
geological CO2 storage.
a decision, not later than two years from when the Act
comes into force, that will oblige operators of these installations to prepare and submit an environmental review.
The latter is referred to in the Act on Environmental
Protection Law and should be supplemented with an assessment of the installation’s readiness to capture CO2.
If the results of the assessment are positive, the operator
will be obliged to specify a site or part of one where the
CO2 capture equipment will be installed. This measure
is significant for ensuring that, despite the lack of proper
transposition of the Directive into national legislation, the
EU provisions that came into force on 25 June 2009 and
were supposed to be transposed by 25 June 2011 are
respected.
It needs to be noted that these measures may prove
insufficient to ensure that sites for the installation of CO2
capture equipment are designated in existing facilities. It is
possible that most of the CO2 capture assessments will be
negative as the available sites are already used for other
purposes. This may mean that the Directive’s objectives
will not be fulfilled for already operating installations.
7.Implementation
As suitable provisions are lacking in national legislation,
it is difficult to talk about the proper implementation of the
Directive. There are few cases of attempts to apply CCS
technology or to analyse its possible application in Poland.
Three investments can serve as an example of the application of CCS technology in Poland: the construction of a CCS
installation in Bełchatów Power Plant, the extension of Opole
Power Plant and the construction of Północ Power Plant.
If these provisions are promulgated as they stand in the
Act, they will properly transpose the Directive.
The measures of the Act that refer to the obligation to conduct the assessment of CCS readiness should be evaluated positively. These provisions implement the obligation
specified in Article 9a of the LCP Directive and introduced
in Article 33 of the Directive.
The Act provides for relevant changes in the provisions
of the Act on 3 October 2008 on access to information
on the environment and its protection, public participation in environmental matters and environmental impact
assessments (Dz. U. No 199, item 1227, as amended)
(hereinafter referred to as The EIA Act). The purpose of
these provisions is to ensure that an environmental impact
assessment is conducted for combustion plants that
generate electricity, with a rated electrical output of 300
megawatts or more.
This also means that certain information has to be
included in the report prepared by the investor in order
to verify the availability of underground CO2 storage sites
as well as the technical and financial viability of the CO2
transport network. The obligation to ensure that suitable space for the equipment necessary to capture and
compress CO2 is set aside on the installation site will be
introduced by means of amendments to the regulations to
the Act of 7 July 1994 on Construction Law (uniform text,
Dz. U. of 2010, No 243, item 1623, as amended).
As far as CCS readiness is concerned, the Act provides for special measures with regard to combustion
plants that obtain their construction permits after 25 June
2009 but before the Act comes into force and combustion
plants that obtain their decisions on environmental requirements, referred to in Article 71 (1) of the EIA Act, before
the Act comes into force. Pursuant to the Act, for such
installations a relevant Marshall of Voivodship has to issue
41
a) Bełchatów Power Plant
The project involving the construction of a demonstration
CCS installation in Bełchatów was initiated in 2009 by
the company PGE Górnictwo i Energetyka Konwencjonalna S.A. (PGE GiEK S.A.), with its registered office in
Bełchatów. The installation was supposed to be integrated
with an energy unit of 858 MW, which opened for operation in September 2011 in PGE GiEK S.A. – Elektrownia
Bełchatów Division. It was planned that it would include
three key components that made up the full value chain in
the validation process of the CCS technology.
A Carbon Capture Plant and its integration with the
858 MW energy unit, with a capacity of >250 MW and CO2
capture efficiency of >85%, based on the technology of the
advanced amine process. The installation was supposed
to capture around 1.8 million tons of CO2 annually. This
task also involved the adjustment of the 858 MW unit to
capture-ready status.
● CO2 transport: a pipeline and related infrastructure for
transporting compressed CO2 to the place of storage;
● CO2 storage: the underground injection of compressed
CO2 (into deep saline formations) for the purpose of its
permanent storage.7
The project implemented by PGE GiEK S.A. obtained
significant EU support, including a grant of EUR 180 million under the European Energy Programme for Recovery.
Moreover, in July 2012 the European Commission published a working document stating that Bełchatów’s CCS
project was classified as second in a ranking of projects
that have applied for financing under the NER300 Programme.8,9
Nevertheless, this significant financial and technical
support was insufficient to finalise the investment. On 20
February 2013, the company PGE Górnictwo i Energetyka Konwencjonalna S.A. abandoned the CCS project in
Bełchatów. “The decision to give up the construction of a
demonstration CCS installation stems from problems with
closing the project’s financial structure as well as significant legal and formal barriers that such investments face.
As far as the latter is concerned, the main obstacles
include the lack of an implementation of the CCS Directive into Polish legislation and the lack of measures on
CO2 transmission. The cost of the project was estimated
at EUR 600 million. As full financing was not secured, the
project was unprofitable”.10
b) Północ Power Plant
This project involves the construction of a new coal power
plant on a greenfield site; its capacity would equal 2 x
1000 MW.
Under the procedure for issuing a construction permit,
during which the body conducting the procedure repeated
the environmental impact assessment for the project, the
investor was not obliged to verify the plant’s CCS-readiness, i.e. to check whether transport installations as well
as CO2 retrofit were technically and financially feasible.
The investor, i.e. Elektrownia Północ sp. z o.o., with
its registered seat in Warsaw, stated that it had assessed
the project’s CCS-readiness on its own initiative. The
company declared that CO2 capture was feasible for the
investment. Thus Elektrownia Północ sp. z o.o. ensured
that the project would be adjusted to the requirements
that are going to be introduced to Polish legislation as a
result of the transposition of the Directive.
According to Foundation ClientEarth Poland, the
bodies that conducted the aforementioned procedure did
not perform proper analysis of the data provided by the
investor with regard to CCS-readiness. As a result, they
did not impose on the investor the obligations connected
with the analysis required by Article 9a of the LCP Directive, introduced by the CCS Directive.
This behaviour of the public administration body in
question results from the fact that the CCS Directive
has not been transposed into national legislation. Public
administration bodies as well as administrative courts
do not recognise the direct application of the Directive.
Therefore, they argue that public bodies are not entitled
to impose on investors the obligations that result from
Article 9a of the LCP Directive without relevant measures
in Polish legislation.
Due to the investor’s initiative, the consequences of such
a stance are not that visible for Północ Power Plant. They are
much more evident in the case of Opole Power Plant.
7. http://www.pgegiek.pl/index.php/ccs/instalacja-demonstracyjna-ccs/
8. Ibid
9. The fate of other demonstration projects to be implemented in Poland
was similar, e.g. CCS demonstration project in the Kędzierzyn-Koźle Power Plant.
10. Information provided by PGE GiEK S.A. on 6 June 2013, http://www.
pgegiek.pl/
42
c) Opole Power Plant
The extension of Opole Power Plant includes among other
things the construction of two new electricity generation
units with a gross capacity of around 900 MW each.
In September 2011 Foundation ClientEarth Poland appealed against the decision on the environmental requirements for the consent to implement the project. One of
the reasons was the fact that the bodies conducting the
procedure in question did not oblige the investor to conduct an assessment of the investment’s CCS-readiness,
as referred to in Article 9a of the LCP Directive.
With its judgement of 12 January 2012, the Voivodship
Administrative Court in Warsaw (case number: IV SA/Wa
1757/11) repealed the aforementioned decision. In the
justification the court stated that a pro-EU interpretation
of relevant national provisions should have been applied
in order to make Article 9a of the LPC Directive effective.
This means that the investor should have been obliged to
conduct an assessment of the project’s CCS-readiness.
On 2 October 2012 (case number: II OSK 1246/12) the
Supreme Administrative Court repealed the aforementioned
judgement of the Voivodship Administrative Court in Warsaw
and remanded the case for re-examination. In its justification,
the Supreme Administrative Court stated that the pro-EU
interpretation of relevant national legislation, as well as the
direct application of Article 9a of the LCP Directive were
impossible. When re-examining the case, the Voivodship
Administrative Court was obliged to agree with the Supreme
Administrative Court, pursuant to Article 190 of the Act of 30
August 2002 on the Law of administrative court proceedings
(uniform text, Dz. U. of 2012, item 270, as amended). In its
judgement of 19 February 2013 (case number: IV SA/Wa
2652/12) the Voivodship Administrative Court dismissed the
appeal filed by Foundation ClientEarth Poland.
In all the aforementioned judgements the courts
stated that Poland has violated EU legislation by failing
to transpose the CCS Directive, which should have
been transposed by mid 2011. In their judgement of
2 October 2012 and 19 February 2013, the Supreme
Administrative Court and the Voivodship Administrative
Court in Warsaw stated that the only reason why the
argument that Article 9a of the LCP Directive had been
violated could not be taken into account was the lack of
relevant provisions on the assessment of CCS-readiness in Polish legislation.
objective
Due to a lack of the Directive’s transposition and its improper implementation, its objective was not fulfilled in Poland.
On 18 July 2011 the European Commission initiated a
legal procedure against Poland due to the lack of transposition of the CCS Directive into Polish legislation (case
number: 2011/0909).
On 8 May 2013 Foundation ClientEarth Poland filed a
complaint to the European Commission, accusing Poland
of violating EU law due to the improper implementation
of the Directive in the context of Opole Power Plant. The
complaint is being analysed by the relevant units of the
European Commission.
43
Directive on Energy
End-use Efficiency
1
and Energy Services
Agata Bator
44
1. Objectives of the Directive
The general objective of Directive 2006/32/EC of the
European Parliament and of the Council of 5 April 2006
on Energy End-use Efficiency and Energy Services and
repealing Council Directive 93/76/EEC (OJ EU L114 of
27 April 2006, p. 64, hereinafter referred to as “Directive
2006/32/EC”) is to improve energy end-use efficiency,
which should contribute to improved security of energy
supply (incl. making the European Union independent
of energy import) as well as to the reduction of primary
energy consumption, to the mitigation of CO2 and other
greenhouse gas emissions and thereby to the prevention
of climate change (recital (1), (2) and (3) of the preamble
to Directive 2006/32/EC).
Directive 2006/32/EC assumes energy savings of 9%
in relation to each Member State (recital (12) of Directive 2006/32/EC). As has been emphasised in Directive 2006/32/EC, the assumed improvement in energy
efficiency should be cost-effective (Article 1 of Directive
2006/32/EC) and oriented to the use of cost-effective
technological innovations (recital (28) of the preamble to
Directive 2006/32/EC).
The above general objective should be achieved particularly through the development of energy services and
managed demand for energy (recital (1), (7), (9) and (20)
of the preamble to Directive 2006/32/EC).
The recital (7) of the preamble to Directive 2006/32/EC
also stresses the key role of the public sector in striving to
improve energy efficiency. Article 1 of Directive 2006/32/
EC stipulates that its purpose is to enhance the cost-effective improvement of energy end-use efficiency in Member
States by providing the necessary indicative targets on
energy efficiency as well as mechanisms, incentives and
institutional, financial and legal frameworks to remove
existing market barriers and imperfections that impede the
efficient end-use of energy, and by creating conditions for
the development and promotion of a market for energy
services and for the delivery of other energy efficiency
improvement measures to final consumers (Article 1 of
Deadline for transposition
of the Directive passed
on 17.V.2008. Lack
of full transposition.
the Member States must aim to achieve it and their failure
to do so will require submitting reasons.2
Furthermore, each Member State should establish an
intermediate indicative energy savings target for the third
year of application of Directive 2006/32/EC (i.e. for 2010)
(Article 4(2) of Directive 2006/32/EC). Member States
should also ensure that the public sector fulfils an exemplary role in energy end-use efficiency. To this end, Member States should oblige public sector entities to adopt at
least two energy efficiency improvement measures from
the list set out in Annex VI to Directive 2006/32/EC (Article
5 of Directive 2006/32/EC).
Chapter III of Directive 2006/32/EC contains more
detailed regulations on the promotion of energy end-use
efficiency and energy services. The Member States should
choose one or more of the requirements mentioned in
Directive 2006/32/EC to be complied with by the compa-
2. Basic provisions of Directive
2006/32/EC
Chapter I of Directive 2006/32/EC determines the purpose
and scope of its application and contains definitions of the
most important terms. The Directive 2006/32/EC applies
to providers of energy efficiency improvement measures,
energy distributors, distribution system operators and retail
energy sales companies. Chapter II of Directive 2006/32/
EC determines the general indicative target and emphasises the exemplary role of the public sector.
Pursuant to Article 4 of Directive 2006/32/EC, Member States adopt and aim to achieve an overall national
indicative energy savings target of 9% for the ninth year of
application of the Directive 2006/32/EC (i.e. for 2016), to
be reached by way of energy services and other energy
efficiency improvement measures (Article 4(1) of Directive
2006/32/EC). The fact that it is an indicative target means
that it is not binding under pain of specific sanctions but
5 April 2006 on Energy End-use Efficiency and Energy Services and repealing Council Directive 93/76/EEC (OJ EU L114 of 27 April 2006, p.
64).
2. A. Damasiewicz, Efektywność energetyczna. Komentarz, LEX/el. 2012
(commentary available only in an electronic form in the Legal Information System LEX).
45
nies covered thereby. The requirements are as follows:
(i) to ensure and promote competitively priced energy
services to their final customers, (ii) to ensure the availability to their final customers and to promote competitively
priced energy audits, (iii) to contribute to the funds or
mechanisms of funding energy efficiency improvement
measures. Alternatively, Member States should ensure
the introduction of voluntary agreements or other marketoriented schemes, such as white certificates, with an effect
equivalent to one or more of the above-mentioned requirements (Article 6(2) of Directive 2006/32/EC). Member
States should also ensure the conditions necessary for the
development of a market for energy services, energy audits and energy efficiency improvement measures (Article
6(3) of Directive 2006/32/EC).
Moreover, Member States should ensure, where they
deem it necessary, the availability of appropriate qualification, accreditation or certification schemes for providers of
energy services, energy audits and energy efficiency improvement measures (Article 8 of Directive 2006/32/EC),
repeal or amend national legislation and regulations, other
than those of a clearly fiscal nature, that unnecessarily or
1. Tak: Agnieszka Damasiewicz, Efektywność energetyczna. Komentarz,
LEX/el. 2012 (komentarz dostępny wyłącznie w formie elektronicznej w
Systemie Informacji Prawnej LEX).
46
disproportionately impede or restrict the use of financial
instruments for energy savings in the market for energy
services or other energy efficiency improvement measures
(Article 9(1) of Directive 2006/32/EC), and ensure the removal of those incentives in transmission and distribution
tariffs that unnecessarily increase the volume of distributed
or transmitted energy (Article 10 of Directive 2006/32/EC).
Member States must also ensure the availability of
high-quality energy audit schemes to all final consumers
(Article 12(1) of Directive 2006/32/EC) and to provide final
customers for electricity, gas, heating, cooling and domestic hot water with competitively priced individual meters, in
so far as it is technically possible, financially reasonable
and proportionate in relation to the potential energy savings (Article 13(1) of Directive 2006/32/EC).
Furthermore, Member States must ensure that billing
performed by energy distributors, distribution system
operators and retail energy sales companies is based on
actual energy consumption, and is presented in clear and
understandable terms (Article 13(2) of Directive 2006/32/
EC). Additionally, Member States must ensure that the
following information detailed in Directive 2006/32/EC is
made available to final customers with their bills, contracts or receipts to enable the proper assessment of their
energy consumption: current actual prices and the actual
consumption of energy as well as comparisons of the final
customer’s current energy consumption with consumption
for the same period in the previous year (Article 13(3) of
3. Entry into force of Directive
2006/32/EC
The Directive 2006/32/EC entered into force on 17 May
2006, i.e. on the twentieth day following its publication in
the Official Journal of the European Union (Article 19 of
Directive 2006/32).
4. Deadline for implementation
in national law
Pursuant to Article 18(1) of Directive 2006/32/EC, the
Member States were obliged to bring into force the laws,
regulations and administrative provisions necessary to
comply with this Directive not later than 17 May 2008,
with the exception of the provisions of Article 14(1),
(2) and (4) (provisions on informing the Commission
about the energy savings calculation methods used by
the Member States on the effective date of the Directive 2006/32/EC, on drawing up and delivering Energy
Efficiency Action Plans to the Commission as well as on
assessing these plans by the Commission) for which the
transposition date was 17 May 2006.
5. Transposition into national law
In order to transpose Directive 2006/32/EC into Polish
law, The Energy Efficiency Act3 was passed on 15 April
2011 (“Energy Efficiency Act”). This Act fails to correctly transpose all the definitions contained in Directive
2006/32/EC into Polish law. First, it should be noted that
the Energy Efficiency Act contains no definition of “energy
service,” which in Directive 2006/32/EC is defined as a
physical benefit, utility or good derived from a combination
of energy with energy efficient technology or with actions,
which may include the operations, maintenance and control necessary to deliver the service, which is delivered on
the basis of a contract and in normal circumstances has
proven to lead to verifiable and measurable or estimable
energy efficiency improvement or primary energy savings
(Article 3(e) of Directive 2006/32/EC).
The lack of this definition in the Energy Efficiency Act
results from the fact that this Act does not directly refer
to the issue of energy services, which should be considered a serious violation of the transposition of Directive
2006/32/EC into Polish law. As Agnieszka Damasiewicz rightly notices, “the Directive, starting from its title
(“Directive on Energy End-use Efficiency and Energy
Services”) stresses the importance of the development of
energy services for the achievement of increased energy
efficiency. The preamble indicates that energy end-use
efficiency improvement may be achieved by increasing
the availability of energy services, increasing the demand
for such services “and other energy efficiency improvement measures" (cf. recital (17) of the preamble to the
Directive).
Moreover, the Directive emphasises that the Council
Conclusions of 5 December 2000 list the promotion of
energy services through the development of a Community
strategy as a priority area for action to improve energy
efficiency (cf. recital (19) of the preamble to the Directive)
and that energy distributors, distribution system operators
and retail energy sales companies can improve energy
efficiency in the Community if the energy services they
market include efficient end-use (cf. recital (20) of the
preamble to the Directive).
As is indicated in the main part of the Directive, its purpose is to enhance the cost-effective improvement of energy end-use efficiency in the Member States by creating
conditions for the development and promotion of a market
3. Dz. U. of 2011, N° 94, item 551, as amended.
47
for energy services and for
the delivery of other energy efficiency improvement
measures to final consumers
(cf. Article 1 of the Directive)
and Member States should
aim to achieve an overall
national indicative energy
savings target by way of energy services and other energy efficiency improvement
measures (cf. Article 4 of the
Directive).”4 A. Damasiewicz
points out that by using the
expression “energy services
or other energy efficiency
improvement measures" the
Directive gives priority to energy services and she rightly
emphasises that this priority
has not been taken into account in the Energy Efficiency
Act5.
The Energy Efficiency Act lacks regulations on energy
services and, consequently, it lacks such definitions
provided for in Directive 2006/32/EC as “energy service
company (ESCO),” “energy performance contracting” and
“third-party financing” (Article 3(i), (j) and (k) of Directive 2006/32/EC). Due to the key role of energy services,
including the need, mentioned in Directive 2006/32/EC, to
transform the market that treats energy as a product into a
market that offers such energy services as indoor thermal
comfort, domestic hot water,
refrigeration, product manufacturing, illumination and
motive power6, as well as
to the low level of development of energy services in
Poland7, legislative actions in
this area seem necessary to
create legal frameworks for a
market for energy services.
Such legal frameworks can be created e.g.
by introducing a definition of
energy service company and
the structure of a contract
for energy services into the
national regulations, which
would help to stimulate the
market at least by introducing these terms into the
consciousness of potential service providers and potential
clients. Unfortunately, the Energy Efficiency Act fails to
create such legal frameworks.
Furthermore, a slightly narrowing transposition of the definition of an energy audit should be noted. According to Directive 2006/32/EC, an energy audit is a systematic procedure to
obtain adequate knowledge of the existing energy consumption profile of a building or group of buildings, of an industrial
operation or installation or of a private or public service, identify
and quantify cost-effective energy savings opportunities, and
report the findings (Article 3(l) of Directive 2006/32/EC).
Introduction to the national
rugulations definitions
of energy services company
and energy service contracts
would help to stimulate
the market.
4. A. Damasiewicz, op. cit.
5. Ibid.
6. cf. recital (20) and (21) of the preamble to Directive 2006/32/EC.
7. As it results from the draft report prepared by the Institute of Environmental Economics, the ESCO market has considerable potential in Poland but is still
on the threshold of the development phase and the number of actors in this market is small. The market has been developing for a few years but taking into
account the circumstances that create potentially favourable conditions for development, such as increasing costs of energy or the European Union policy
oriented to the improvement of energy efficiency, this growth should proceed much faster, cf. Rynek ESCO w Polsce. Stan obecny i perspektywy rozwoju,
draft report, Institute of Environmental Economics, 2012, http://www.iee.org.pl/?a=text&b=32, p. 7.
48
Meanwhile, the Energy Efficiency Act introduces a
definition of “energy efficiency audit” which means a study
containing an energy consumption analysis, determining
the technical condition of a facility, technical equipment or
installation and containing a list of undertakings that aim to
improve energy efficiency of these facilities, equipment or
installation, and an assessment of their cost-effectiveness
and possible energy savings (Article 3(7) of the Energy Efficiency Act). The Polish definition ignores the audit’s systematic character and does not allow for it to be conducted
in relation to an operation.8
Article 4(1) of the Energy Efficiency Act is a transposition of Article 4(1) of Directive 2006/32/EC that requires
the Member States to adopt and aim to achieve an overall
national indicative energy savings target of 9% for the
ninth year of application of the Directive. Article 4(1) of the
Energy Efficiency Act establishes a national energy savings target that assumes obtaining by 2016 final energy
savings of at least 9% of the average national consumption of this energy per year, whereas the averaging
encompasses the years 2001-2005.
However, the Energy Efficiency Act does not contain
a correct transposition of Article 4(2) of Directive 2006/32/
EC according to which Member States must determine an
intermediate indicative energy savings target for the third
year of application of Directive 2006/32/EC (i.e. for 2010).
Such a situation might have resulted from a considerable
delay in transposing Directive 2006/32/EC into Polish law
(the Energy Efficiency Act was passed in 2011). When
passing the Energy Efficiency Act, the transposition of this
provision of Directive 2006/32/EC was already irrelevant.
Article 5 of Directive 2006/32/EC concerning the
exemplary role of the public sector in energy efficiency
has been transposed by Articles 10 and 11 of the Energy
Efficiency Act. Pursuant to Article 10(1) and (2) of the
Energy Efficiency Act, a public sector entity should use,
while fulfilling its tasks, at least two of the following energy
efficiency improvement measures: (i) energy performance
contracting; (ii) the purchase of new, energy-efficient and
cost-effective equipment, installations or vehicles; (iii)
the replacement of operated equipment, installations or
vehicles with equipment, installations or vehicles listed in
point (ii) or their modernisation; (iv) the purchase or rental
of energy-efficient buildings or parts thereof, or the conversion or renovation of buildings used; (v) the preparation
of an energy audit within the meaning of the Act of 21
November 2008 on support for thermo-modernisation and
renovations of buildings used with a floor area of over 500
m2 that a public sector entity owns or manages.
Moreover, pursuant to Article 10(3) of the Energy Efficiency Act, a public sector entity should provide information about the energy efficiency improvement measures
used on its website or in another manner customarily
accepted in a given locality. The quoted provision of the
Energy Efficiency Act is a relatively faithful repetition of an
appropriate provision of Directive 2006/32/EC, it should
however be noted that in terms of directives’ correct
implementation, the repetition of directive expressions is
not always a sufficient form of its transposition into the
national law. The principal implementation rule consists in
such a selection of implementation forms and measures
that would ensure their full effectiveness.9 The effectiveness of Article 10(1-3) of the Energy Efficiency Act is
doubtful considering the lack of support for the obligation
8. A. Damasiewicz, op. cit.
9. B. Kurcz, Dyrektywy Wspólnoty Europejskiej i ich implementacja do prawa krajowego, Zakamycze 2004, p. 150.
49
to use energy efficiency improvement measures by public
sector entities by means of time, qualitative or quantitative
criteria (in view of the amount of saved energy).10
Taking into account the current version of Article 10
of the Energy Efficiency Act and the fact that, in principle, the provisions of this Act will remain in force until 31
December 2016, a conclusion can be drawn that to meet
the obligation by public sector entities it is enough to use
only two chosen measures in a period of more than 5
years, even if these measures are not very ambitious and
of short-term application as e.g. a one-time replacement
of bulbs (as it is not required that energy savings solutions
have a definite period of application or generate a specific
amount of saved energy).
Furthermore, despite the fact that the Energy Efficiency Act basically repeats appropriate fragments of Article
5 of Directive 2006/32/EC in relation to the role of the
public sector, it skips over the requirement contained in
the Directive saying that the public sector should focus on
cost-effective measures that generate the greatest savings
in the shortest time. Therefore, the regulations introduced
by the Energy Efficiency Act seem insufficient to fulfil the
exemplary role in energy efficiency by the public sector.
Article 6(1) of Directive 2006/32/EC imposes an obligation on Member States to ensure that energy distributors,
distribution system operators or retail energy sales companies: (i) provide not more than once a year aggregated
statistical information on their final customers to designated entities in order to properly design and implement energy efficiency improvement programmes, and to promote
and monitor energy services and other energy efficiency
10. Cf. A. Damasiewicz, op. cit.
11. Articles 12 – 27 of the Energy Efficiency Act.
50
improvement measures, (ii) refrain from any activities that
might impede the demand for and delivery of energy services and other energy efficiency improvement measures,
or hinder the development of markets for energy services
and other energy efficiency improvement measures. The
above provisions of Directive 2006/32/EC have not been
transposed into the Polish law.
Article 6(2) of Directive 2006/32/EC has been transposed into Polish law by the introduction of a so-called
system of white certificates, known in the Polish regulations as energy efficiency certificates (hereinafter referred
to as “white certificates”), by the Energy Efficiency Act11.
As a complement to legislative provisions and on their
basis, suitable executive acts have also been passed concerning e.g. the conditions of tender procedures for selecting energy efficiency improvement undertakings for which
white certificates are granted and the quantity and method
of calculating the amount of primary energy corresponding
to the value of a white certificate.
The Polish legislator decided to use a mechanism
that in the light of Directive 2006/32/EC is optional and
should result in: (i) ensuring competitively priced energy
services to final customers and promoting these services,
(ii) ensuring the availability to final customers and promoting competitively priced energy audits, or (iii) contributing
to the funds or mechanisms funding energy efficiency
improvement measures. Due to the optional character of
this mechanism,
Directive 2006/32/EC contains no detailed requirements in this area. It contains only a definition of “white
certificates,” according to which they are certificates
issued by independent certifying bodies confirming the
energy savings claims of market actors as a consequence
of energy efficiency improvement measures. While assessing the conformity of the system of white certificates
introduced by the Energy Efficiency Act with the provisions
of Directive 2006/32/EC, one needs to take into account
the targets of this Directive and particularly the need for
energy end-use efficiency improvement emphasised
therein. Pursuant to Article 16(7) of the Energy Efficiency
Act, at least 80% of grantable white certificates should be
granted for the undertakings increasing energy savings by
final customers and the remaining 20% may concern the
undertakings leading to an increase in energy savings by
auxiliary equipment12 and to reduced losses of electricity,
heating or natural gas in transmission or distribution.
Moreover, pursuant to Article 16(8) of the Energy Efficiency Act, if the total value of white certificates granted
in a given tender procedure in the category of undertakings aiming to increase energy savings by final customers
is smaller than the above-mentioned 80%, the President
of the Energy Regulatory Office may grant the remaining
white certificates to undertakings on the basis of energy
saved by auxiliary equipment and the reduction of losses
in transmission or distribution.
Such wording of the provisions of the Energy Efficiency
Act does not give priority to the promotion of energy savings by final customers. Theoretically, a situation may
arise in which the white certificates for undertakings to increase savings by final customers will constitute a minority
or will not be granted whatsoever due to a lack of appropriate tenders. Therefore, the present wording of Article 16
of the Energy Efficiency Act does not appropriately reflect
the above-mentioned target of Directive 2006/32/EC.
It should be added that in general the number of
white certificates granted considerably depends on the
quantity and quality of submitted tenders for the selection
of energy efficiency improvement undertakings. Furthermore, pursuant to Articles 27(7) and 48(2) of the Energy
Efficiency Act, the system of white certificates will be applicable only until March 2016. Meanwhile, as has been
observed by M. Toporek and M. Stoczkiewicz, companies
take economic decisions based on calculations which
take into consideration much wider time perspectives.
It particularly concerns companies operating in energy-intensive sectors of the economy and in the energy
sector. Therefore, due to the short guaranteed period
of the operation of the market for white certificates, it is
not certain whether the white certificate mechanism will
12. Auxiliary equipment is defined as a unit of auxiliary facilities or installations used for the process of generating electricity or heating (Article 3(14) of the
Energy Efficiency Act).
51
fulfil its role13. With regard to the above, such a manner
of transposing the provisions of Directive 2006/32/EC
that require establishing a system of support for energy
efficiency may turn out to be insufficient for the purposes
of this Directive.
Article 6(3) of Directive 2006/32/EC, pursuant to which
Member States should ensure the conditions necessary for the development of markets for energy services,
energy audits and energy efficiency improvement measures, has not been reflected in the Energy Efficiency Act
inasmuch as it refers to energy services. As has already
been mentioned above, the Energy Efficiency Act has not
created legal frameworks to stimulate the markets for such
services. Planned actions aiming to stimulate the market
for energy service companies have been described in the
Second National Energy Efficiency Action Plan for Poland.
An example of such actions can be enabling energy
service companies to enter a tender procedure in order to
obtain an energy efficiency certificate (a white certificate)
or enabling public sector entities (obliged to use energy ef-
ficiency improvement measures provided for in the Energy
Efficiency Act) to conclude energy performance contracts
with such entities as ESCOs.
Moreover, in accordance with the Second National
Energy Efficiency Action Plan for Poland, other actions to
develop the market for energy services were to be taken
in 2012, such as the introduction of suitable amendments
to documents, including relevant regulations, on obtaining financing from European Union funds, The National
Fund for Environmental Protection and Water Management, The Provincial Fund for Environmental Protection
and Water Management and from the Norwegian Financial Mechanism.
Additionally, demonstration terms of reference and
sample contracts concerning different categories of
services ensuring energy efficiency improvement were to
be published on the websites of the Polish Ministry of the
Economy.14 However, it should be noted that the national
energy efficiency action plan does not constitute a source
of generally applicable law and the transposition of EU
13. M. Toporek, M. Stoczkiewicz, Na ile efektywna ustawa o efektywności energetycznej, Rzeczpospolita, 25 June 2011, http://www.rp.pl/artykul/663942.html?p=1.
14. Second National Energy Efficiency Action Plan for Poland, 2011, version 0.3 of 10 February 2012, p. 43.
52
provisions into national law basically requires establishing
such legal acts.15 The provisions on the development of
energy services contained in the Second National Energy
Efficiency Action Plan for Poland cannot substitute for a
transposition in the form of generally applicable normative acts since this plan fails to specify entities’ obligations to take specific actions (due to the lack of legislative
character and the general nature of the plan provisions).
Therefore, it needs to be stated that the provision of Article
6(3) of Directive 2006/32/EC has not been transposed into
Polish law.
Article 8 of Directive 2006/32/EC, pursuant to which
the Member States should ensure, where they deem it
necessary, the availability of appropriate qualification, accreditation or certification schemes for providers of energy
services, energy audits and energy efficiency improvement measures, has not been transposed into Polish law.
Initially, the Energy Efficiency Act contained provisions that
regulated the issues of obtaining qualifications required to
conduct an energy audit (Articles 29 – 34 of the Energy Efficiency Act) but these provisions were removed by the Act
of 12 October 2012 amending the Energy Efficiency Act.16
It should however be emphasised that Member States
were given the freedom to establish, or not, the qualification, accreditation or certification schemes for providers
of energy services, energy audits and energy efficiency
improvement measures, so the present legal status is not
inconsistent with Directive 2006/32/EC. In this context, the
quality of conducted energy audits requires special attention. The model that functions on the Polish market lacks
an acceptance of effects and monitoring of conducted activities, and the benefits estimated in the audits are often
considerably overstated.
According to Marek Zaborowski from the Institute of
Environmental Economics, liberation of the energy auditor
profession will not affect the quality of conducted analyses.
In his opinion, this quality could be improved by increasing
the responsibility of auditors and enhancing the monitoring
of the actual results of the undertaking17.
Article 9(1) of Directive 2006/32/EC, which orders
Member States to repeal or amend national legislation and
regulations, other than those of a clearly fiscal nature, that
unnecessarily or disproportionately impede or restrict the
use of financial instruments for energy savings in the market for energy services or other energy efficiency improvement measures, has not been fully transposed into Polish
law. In Polish law, there is, for example, the provision of §
3 (2) of the Minister of Finance’s Regulation of 28 December 2011 on detailed classification of debt titles included
in the national public debt18, pursuant to which the public
debt encompasses e.g. credits and loans, including publicprivate partnership agreements that influence the level of
There are serious doubts,
whether the white certificates
mechanism fulfills its role.
public debt, as well as innominate contracts with a maturity
date of more than a year, related to financing services, deliveries, construction works, which bring economic effects
similar to those of loan agreements.
Some ESCOs and local government representatives
perceive this provision as a barrier to the development of
ESCO investments, particularly with regard to street lighting, since communal debt can be increased in this way.19
However, the authors of the report “The ESCO market in
Poland. Its current state and prospects for development.”
emphasise that in the case of using the public-private
partnership (“PPP”) formula for ESCO contracts, it is possible, after meeting some additional conditions, to avoid
the inclusion of receivables on account of ESCO contracts
in public debt.20 It needs to be stressed though that in
15. B. Kurcz, op. cit., p. 54 – 55.16. 16. Dz.U. of 2012, item 1397.
17. M. Zaborowski for ChronmyKlimat.pl, http://www.chronmyklimat.pl/energetyka/efektywnosc-energetyczna/14443-decyzja-rzadu-o-uwolnieniuzawodu-audytora-nie-wplynie-na-jakosc-uslug-audytorskich
18. Dz. U. of 2011, N° 298, item 1767.
19. Cf. Rynek ESCO w Polsce. Stan obecny i perspektywy rozwoju, draft
report, Institute of Environmental Economics, 2012, http://www.iee.org.
pl/?a=text&b=32, p. 15.
20. According to the official stand of the Ministry of Finance, the fact of whether the given liability arising from a PPP undertaking is included or
not in the public debt depends on the interpretation resulting from Eurostat decision N° 18/2004, pursuant to which liabilities on account of
PPP agreements are not included in public debt if the private partner takes on “the construction risk” and at least one of the following risks: “demand risk” or “availability risk,” cf. Rynek ESCO w Polsce. Stan obecny i perspektywy rozwoju, draft report, Institute of Environmental Economics, 2012, http://www.iee.org.pl/?a=text&b=32, p. 15.
53
Poland the PPP formula is still perceived as complicated
and expensive, and consequently it may turn out not to be
attractive enough to be used to stimulate the development
of the ESCO market.
Pursuant to Article 12 of Directive 2006/32/EC,
Member States should ensure, among other things, the
availability of high-quality energy audit schemes to all final
customers. The issue of the availability of energy audits
has been raised in the Second National Energy Efficiency
Action Plan for Poland21, which indicates the co-financing
of energy audits in companies as one of the energy efficiency improvement measures.
However, as has been mentioned above, the national
energy efficiency action plan does not constitute a source
of generally applicable law. Therefore, it should be noted
that Article 12 of Directive 2006/32/EC has not been transposed into Polish law. Neither the provisions establishing
the system of white certificates (that require the conduct
of an energy efficiency audit which must be enclosed with
the tender declaration) nor the provisions of the Act of 21
November 2008 on the support for thermo-modernisation
and renovations22 (that require an appropriate energy or
renovation audit to be attached to the request for granting a thermo-modernisation or renovation bonus) can be
considered as provisions transposing Article 12 of Directive 2006/32/EC.
First of all, the definition of an energy audit contained
in Directive 2006/32/EC significantly differs from the
definition of an energy and renovation audit contained in
the Act on support for thermo-modernisation and renovations. Moreover, pursuant to the above-mentioned national
provisions, an audit is a document necessary for obtaining investment support in the form of white certificates or
a thermo-modernisation or modernisation bonus when
a general investment decision has already been taken.
Meanwhile, it seems that the purpose of Article 12 of
Directive 2006/32/EC is to promote energy audits (within
the meaning of this Directive) in order to motivate final
customers to take actions to improve energy efficiency
particularly in their households.
Article 13(3) of Directive 2006/32/EC has been seemingly transposed into Polish law by Article 39 of the Energy
Efficiency Act, pursuant to which Article 5 of the Act of 10
April 1997 on Energy Law23 (“the Energy Law”) has been
extended by section 6c ordering electricity sales companies to inform their customers about their electricity consumption in the previous year and about a place in which
information is made available on the average electricity
consumption for a given energy consumer group, energy
efficiency improvement measures and technical characteristics of energy-efficient equipment.
Simultaneously, the Energy Law has been extended
by a provision pursuant to which the scope and method of
sales companies informing customers about their electricity consumption in the previous year and the method of
informing them about a place in which information is made
available on model electricity consumption for a given
energy consumers group, energy efficiency improvement
measures and technical characteristics of energy-efficient
equipment will be determined in a regulation issued by the
minister in charge of the economy (Article 9(4)(15) of the
Energy Law). Meanwhile, the appropriate regulation24 has
21. Second National Energy Efficiency Action Plan for Poland, 2011, version 0.3 of 10 February 2012, p. 23.
22. Dz. U. of 2008, N° 223, item 1459, as amended.
23. I.e. Dz. U. of 2012, item 1059, as amended.
24. Minister of Economy Regulation of 4 May 2007 on the detailed conditions for the operation of the power system, Dz. U. of 2007, N° 93, item 623, as amended.
54
not been amended since 2008 and no new regulation has
been issued in this area. The transposition of this provision of Directive 2006/32/EC is therefore incomplete as
it fails to ensure its effectiveness. Another violation is the
limitation of the above-mentioned obligation to electricity
sales companies, ignoring companies that sell other forms
of energy and fuels.
6. Implementation
As regards the provisions of Directive 2006/32/EC that
have been formally transposed into the Polish law (by
setting up or amending the appropriate generally applicable legal acts), it is necessary to consider whether
additional actions should not be taken to ensure the effectiveness of the transposed EU provisions, e.g. issuing
internally applicable acts, administrative acts or undertaking administrative supervision and control activities
(practical implementation).25
Some actions connected to the practical implementation of Article 5 of Directive 2006/32/EC concerning the
public sector’s exemplary role in energy efficiency have
been indicated in the “Report containing information on
implementing the national energy savings target and the
national energy efficiency action plan for 2011, along with
an assessment and conclusions drawn from their imple-
mentation”26 (“the Report”).
The Report was prepared in accordance with Article
8(1) of the Energy Efficiency Act, on the basis of reports
on the implementation of the national energy efficiency
action plan provided by competent ministers and provincial
governors. As results from the Report, “in order to facilitate
the report preparation process, appropriate guidelines
have been developed for ministers and provincial governors”27. In particular, the Report contains information about
the manner of fulfilling the obligation on the exemplary role
of the public sector by individual administration bodies by
using at least two energy efficiency improvement measures listed in the Energy Efficiency Act.
According to the Report, the least frequently used
energy efficiency improvement measures (at the level of
government departments and provinces alike) are energy
performance contracts and energy audits28. Furthermore,
due to a lack of equipment, the requisite metering to
monitor energy consumption and a sufficient number of
specialists, it is not always possible to assess the value
of saved energy.29
With regard to the information provided by province
governors’ offices, the Report emphasises some impediments connected with the heterogeneity of the information
provided that differed in the level of data detail (starting
with very general information up to energy savings cal-
25. Cf. B. Kurcz, op. cit., p. 57.
26. “Report containing information on implementing the national energy savings target and the national energy efficiency action plan for 2011, along with the
assessment and conclusions drawn from their implementation,” annex to the public notice of the Minister of Economy of 2 August 2013, Monitor Polski of
23 August 2013, item 673.
27. Ibid, p. 5.
28. Ibid, p. 10.
29. Ibid, p. 11-12.
55
culations in absolute units)30. It also stresses the necessity to promote information on the funds available for the
implementation of energy efficiency improvement activities
and to develop consciousness of fulfilling the exemplary
role by public sector entities at the level of provinces.31
As there exist some impediments connected with
fulfilling the exemplary role by the public sector and with
providing information on energy efficiency improvement
measures used by this sector, it would be desirable to
take additional actions to develop the competence and
consciousness of public sector entities, which will contribute to the practical implementation of Article 5 of Directive
2006/32/EC.
As regards the practical implementation of Article 6 of
Directive 2006/32/EC transposed into the Polish law by
introducing regulations on the system of white certificates,
it should be noted that the key issue here is the actual
commencement of this system’s operation and its effectiveness in stimulating investments which aim to improve
energy efficiency. To this end, it is not enough to introduce
legislative provisions and appropriate regulations.
The President of the Energy Regulatory Office must
take action with an aim to issue a suitable number of white
certificates, i.e. to issue invitations to tender and to select
the winning tenders for the undertakings to which these
certificates will be granted. The President of the Energy
Regulatory Office published the first invitation to tender on
31 December 2012 in the Public Information Bulletin of the
Energy Regulatory Office.32
The deadline for submitting tenders was 30 January
2013, and they were opened on 28 February 2013. The
winning tenders were selected on 29 August 201333, i.e.
more than 6 months after the opening of the tenders. In
the announcement of the President of the Energy Regulatory Office of 27 May 2013, the long duration of the tender
procedure was explained by the precedential character
of the case34. Such a lengthy selection of the winning
tenders, however, brings up a question as to whether the
administrative authorities responsible for conducting the
tender procedure were suitably prepared for this task.
Regardless of the time spent on selecting the first
winning tenders in the procedure concerning the issuance
of white certificates (the length of which can be partly
explained by the precedential character of the case),
it should be noted that the value of white certificates
(calculated in tonnes of oil equivalent) to be granted to
the winning entities as a result of selecting the winning
tenders constitutes less than 4% of the total value of the
certificates to be issued35.
The total value of energy efficiency certificates to be
issued as a result of the organised tender procedures
amounted to 550 000 toe36, and therefore the value of
energy efficiency certificates to be issued as a result of
this tender procedure amounts to 22 000 toe. The energy
savings target to be achieved in 2016 through the system
of white certificates is approx. 2.2 Mtoe37. So the value
of white certificates to be issued as a result of selecting
the winning tenders is only about 1% of the certificates
expected to bring savings. If the results and duration of
subsequent tender procedures are similar, the assumed
value of savings by means of white certificates will not be
achieved.
30. Ibid, p. 12.
31. Ibid, p. 12.
32. h
ttp://ure.gov.pl/bip/efektywnosc-energetycz/1102,Ogloszenie-PrezesaUrzedu-Regulacji-Energetyki-Nr-12012-w-sprawie-przetargu-na-w.html.
33. M
inutes N° 1/2013 of the tender procedure, http://bip.ure.gov.pl/bip/
efektywnosc-energetycz/1137,Protokol-Nr-12013-z-dnia-29-sierpnia2013-r-z-przebiegu-przeprowadzonego-przetar.html.
34. h
ttp://www.ure.gov.pl/pl/urzad/informacje-ogolne/aktualnosci/5300,URE-w-sprawie-przetargu-na-wybor-przedsiewziec-sluzacych-poprawieefektywnosci-e.html.
35. h
ttp://www.wnp.pl/polska_efektywna_energetycznie/pierwszy-przetargna-biale-certyfikaty-rozstrzygniety,206546_1_0_0.html.
36. Announcement of the President of the Energy Regulatory Office N°
1/2012 on the tender procedure for selecting energy efficiency improvement undertakings for which energy efficiency certificates are granted,
http://bip.ure.gov.pl/bip/efektywnosc-energetycz
37. The overall target to be achieved in 2016 is approx. 4.5 Mtoe, cf. justification to the draft version of the Energy Efficiency Act, http://orka.sejm.
gov.pl/Druki6ka.nsf/0/3E63E71ACD1BCE32C12577C3005DDF04/$file/3514-I.pdf, p. 41.
56
The small number of submitted tenders, the large
number of rejected tenders and the very long duration of
the tender procedures imply that further practical actions
should be taken to enhance the system and thus to practically implement Article 6 of Directive 2006/32/EC, such as
ensuring appropriate training for the representatives of the
authority selecting the winning tenders or ensuring support
for entities submitting tenders.
The small supply of white certificates (that can result
from the above-mentioned imperfections impeding the
operation of the system of white certificates) may question
the effectiveness of this system as a mechanism for stimulating energy efficiency investments. Moreover, as has
been mentioned above, the system of white certificates
is to operate only until March 2016, whereas companies
take economic decisions based on calculations which take
into consideration much wider time perspectives38. This is
an additional reason for serious doubts as to whether the
mechanism of white certificates will fulfil its role or not.
7. Achievement of the objectives
of Directive 2006/32/EC
The general objective of Directive 2006/32/EC is to
achieve energy savings of 9% in 2016 in relation to the
average consumption for the years 2001 – 2005. The
assessment of this target achievement will be therefore
possible in 2016. Moreover, an intermediate indicative
target was set at the level of 2% of the average consumption for the years 2001 – 2005. In accordance with the
Second National Energy Efficiency Action Plan, energy
savings of 5.9% of the average consumption for the years
2001 – 2005 were obtained by 201039 so the intermediate indicative target was achieved. It should however be
noted that as of September 2013 the Commission has not
published the report on the assessment of the second national energy efficiency action plans submitted by Member
States, and therefore the Commission’s opinion on the
data provided is still unknown.
8. Procedures initiated by the European
Commission
As it results from the draft version of Annex 3 to the Partnership Agreement “The fulfilment of ex ante conditionality
for European funds by Poland 2014-2020,” the proceedings initiated by the Commission against Poland due to the
lack of transposition of Directive 2006/32/EC have been
discontinued. Simultaneously, it has been emphasised
that “work is currently in progress in the Ministry of the
Economy on developing solutions to the Act on Energy
Law that contain the provisions on the necessity to install
intelligent electricity meters.
38. M
. Toporek, M. Stoczkiewicz, Na ile efektywna ustawa o efektywności energetycznej, Rzeczpospolita, 25 June 2011, http://www.rp.pl/artykul/663942.html?p=1.
39. Second National Energy Efficiency Action Plan for Poland, 2011, http://ec.europa.eu/energy/efficiency/end-use_en.htm, p. 8.
57
The Directive
on the Ecodesign
of Energy-Related
Products1
58
Agata Bator
1. Aims of the Directive
The aim of Directive 2009/125/EC of the European Parliament and of the Council of 21st October 2009 establishing
a framework for the setting of ecodesign requirements for
energy-related products (OJ L 285 of 31.10.2009, p. 10,
hereinafter called “Directive 2009/125/EC”) is to achieve
a high level of environmental protection by reducing the
potential impact of energy-related products on the environment. In the preamble to Directive 2009/125/EC it is indicated that this will be ultimately beneficial for consumers
and other end users, and that improving the energy and
resource efficiency of products will contribute to the security of the energy supply and to the reduction of the demand
for natural resources (motive 10 of the preamble to Directive 2009/125/EC). Implementing ecodesign requirements
should contribute to improving energy efficiency and
reducing environmental impact since many energy-related
products have great potential, thanks to their improved
designs, to reduce their environmental impact and to save
energy. This aims also to generate savings for companies
and end users (motive 10 of the preamble to Directive
2009/125/EC). The relation of ecodesign and energy efficiency improved in this way to achieving greenhouse gas
emission targets in the European Union (motive 6 of the
preamble to Directive 2009/125/EC) as well as the relation
to the Integrated Product Policy of the European Union
(motive 5 of the preamble to Directive 2009/125/EC) are
emphasised in the preamble to the Directive. The main
aim of Directive 2009/125/EC is to ensure the free movement of energy-related products on the internal market.
Therefore the Directive specifies a framework for the setting of ecodesign requirements for such products.
2. Basic resolutions of Directive
2009/125/EC
“Ecodesign” means the integration of environmental
aspects into product design with the aim of improving the
environmental performance of the product throughout its
whole life cycle.2 The Directive provides that the Committee shall issue so-called implementing measures3 which
specify the ecodesign requirements concerning particular
groups of products (Art. 1 (2) of Directive 2009/125/EC).
The implementing measures are issued in relation to products which meet the following criteria:
a) the product generates significant sales within the
European Union, approximately 200,000 items a year,
according to the latest data;
b) the product has a significant environmental impact4 as
regards the amounts placed on the market or put into
service; and
c) the product has significant potential to improve its
impact on the environment without generating excessive costs, including in particular: (i) the lack of other
appropriate EU legislation or the lack of an appropriate
solution of the problem by market forces, and (ii) great
discrepancies concerning the ecological performance
of any products on the market that have and equivalent
function.
1. Directive 2009/125/EC of the European Parliament and of the Council
of 21st October 2009 establishing a framework for the setting of ecodesign requirements for energy-related products. (OJ L 285 of 31.10.2009,
p. 10).
2. Art. 2 point 23 of Directive 2009/125/EC.
3. These take the form of so-called Implementing Regulations.
4. As specified in the strategic Community priorities specified in Decision
No 1600/2002/EC.
Directive 2009/125/EC requires that products covered by
implementing measures may be placed on the market or
put into service only if they comply with those measures
and bear the CE marking (Art. 3 (1) of Directive 2009/125/
EC). The rules concerning affixing a CE marking and issuing Declarations of Conformity in connection with meeting
the ecodesign requirements are specified in Art. 5 of the
Directive 2009/125/EC as well as in Annex VI hereto. The
Declaration of Conformity should be issued after assessing the conformity of the product with all the requirements
of the pertaining implementing measure. The conformity
assessment procedures are specified in the implementing
of the Direvtive passed
on 20.IX.2010. Directive
transposed with delay.
59
measures concerning particular products. Manufacturers
have a choice between internal design control (described
in Annex IV to Directive 2009/125/EC) and a management
system for assessing conformity (described in Annex V to
Directive 2009/125/EC)5.
Pursuant to Directive 2009/125/EC, Member States
are obliged to set up a system of control and supervision
of the market to ensure that the requirements specified in
the Directive are met. They shall designate the authorities
responsible for market surveillance and arrange for them
to have and use the necessary powers (Art. 3 (2) and Art.
7 of Directive 2009/125/EC).
At the same time Directive 2009/125/EC invokes the
rule of free movement of goods within the European Union
and explains that the requirements regarding ecodesign cannot restrict or impede the placing on the market
or putting into service within the territories of particular
Member States of products that meet the requirements of
the appropriate implementation measure and bear the CE
marking (Art. 6 (1) of Directive 2009/125/EC).
Member States are also obliged, subject to Art. 20
of Directive 2009/125/EC, to lay down the penalties for
infringing national provisions adopted pursuant to this
Directive and to notify those provisions to the Commission
by 20th November 2010 (and then notify the Commission
of any subsequent amendments to these provisions).
2009/125/EC
Directive 2009/125/EC entered into force on 20th November 209 (Art. 25 of Directive 2009/125/EC).
4. Time for implementation
in national law
Member States were obliged to bring into force the
laws, regulations and administrative provisions necessary to comply with the provisions of Directive
2009/125/EC by 20th November 2010 (Art. 23 (1) of
5. Transposition into the national law
Directive 2009/125/EC has been transposed into Polish
law by passing the Regulation of the Minister of the
Economy of 17th December 2010 on the conformity assessment procedures for energy-consuming products and
marking them6 (hereinafter called “Regulation”).
However, it must be noted that due to the connection
of Directive 2009/125/EC with the so called new approach7
specified in the Council Resolution of 7th May 1985 on a
new approach to technical harmonisation and standards8,
the Regulation was issued pursuant to Art. 9 of the Act
of 30th August 2002 about the compliance assessment
system9 (“Act on the Compliance Assessment System”).
The Act establishes the legal framework for the products
covered by the so-called new approach directives,(that
is directives passed according to the principles included
in the abovementioned Resolution of the Council of the
European Union of 7th May 1985 on the new approach to
technical harmonisation and standards).
In connection with the above, the appropriate provisions of the Act on the Compliance Assessment System
are applicable to the products covered by the implementing measures issued on the basis of Directive 2009/125/
5. Art. 8 (1) (2) of Directive 2009/125/EC
6. Dz. U. of 2011, No 8, item 32.
7. Motive 34 of the Preamble of the Directive 2009/125/EC.
8. Dz. U. C 136 of 04.06.1985, p. 1.
9. Dz. U. of 2010, No 138, item 935, consolidated text, with subsequent alterations.
60
EC. Art. 13 (a) of the Act on Compliance Assessment
System can be mentioned among these provisions.
According to it a manufacturer or its authorised representative (alternatively an importer, if the manufacturer’s
registered seat is not in the territory of EU Member States
or in the territory of the Member States of the European
Free Trade Association (EFTA) – parties of the European
Economic Area, and if the manufacturer has not appointed
an authorised representative) is obliged to keep the
documentation concerning the products and the results of
the conformity assessment of the products with the basic
requirements for 10 years from the date of manufacturing
the last product the documentation applies to.
Moreover, another consequence of the relation of
Directive 2009/125/EC to the so called new approach is
that products specified in implementing measures under
this Directive are subject to the surveillance of the Trade
Inspection and the President of the Office of Electronic
Communications (within the appropriate scopes)10. These
authorities act as specialised authorities, pursuant to Art.
38 of the Act on Compliance Assessment System and
together with the President of the Office of Competition
and Consumer Protection they constitute the elements of
the surveillance system which is defined by this Act (also
in relation to the products covered by the implementing
measures issued under Directive 2009/125/EC).
Pursuant to Art. 39 (1) of the Act on Compliance Assessment System, the President of the Office of Competition and Consumer Protection is an authority that monitors the control systems of products established under
this Act. The detailed competences of the Trade Inspection and the President of the Office of Electronic Communications in the scope of product control (including
the products covered by implementing measures issued
under Directive 2009/125/EC) are specified respectively
by: Trade Inspection Act of 5th December 200011 (hereinafter called “Trade Inspection Act”) and the Act of 16th
July 2004 Telecommunications Law12 (hereinafter called
“Telecommunications Law”).
Implementing measures issued under Directive
2009/125/EC, which are the main source of ecodesign
requirements come in the form of regulations (hereinafter
called “implementing regulations”)13 and therefore they are
fully binding and directly applied in all Member States.14
From the effective date, the Regulation shall be a part of
the national law of a Member State and is applied directly,
without needing to be transposed into national law.15 In
connection with the above, national regulations transposing the provisions of Directive 2009/125/EC and directly
binding EU provisions complement each other.
An analysis of the Regulation, the Act on Compliance
Assessment System, Telecommunications Law and The
Trade Inspection Act leads to the conclusion that most
of the provisions of Directive 2009/125/EC have been
transposed into Polish Law. However, it should be noted
that there are some discrepancies between the provisions
of the Directive 2009/125/EC and the pertinent provisions
of Polish law.
Firstly, amongst the definitions provided for in the
Regulation, the definitions of components and subassemblies are missing. Pursuant to Art. 2 (2) of the Directive
2009/125/EC components and subassemblies mean
components which are to be included in the products and
which are not placed on the market or put into service as
separate parts for end users or for which environmental
performance cannot be assessed separately. Doubts as to
how this should be interpreted may occur as the result of
the lack of this definition in the legal act transposing Directive 2009/125/EC into Polish law, since Art. 11 of Directive
2009/125/EC stipulates that implementing measures may
10. Art. 199 (1) (a) of the Act of 16th July 2004 – Telecommunication Law, Dz. U. of 2004, No 171, item 1800 with subsequent alterations, and Art. 3 (1) point 1
(a) of the Act on Trade Inspection of 5th December 2000, Dz. U. of 2009, No 151, item 1219, consolidated text, with subsequent alterations.
11. Dz. U. of 2009, No 151, item 1219 consolidated text, with subsequent alterations.
12. Dz. U. of 2004, No 171, item 1800, with subsequent alterations.
13. A list of appropriate implementing regulations is on the website of the Commission: http://ec.europa.eu/energy/efficiency/ecodesign/doc/overview_legislation_eco-design.pdf
14. Art. 288 (2) of the Treaty of the Functioning of the European Union, Treaty of the Functioning of the European Union, consolidated version, O J C 83 of
30.03.2010, p. 47.
15. A. Wyrozumska, J. Barcz, M. Górka, A. Wyrozumska „Instytucje i prawo Unii Europejskiej” Warsaw 2012, p. 237 and case 34/73 Variola, LexPolonica No
348040.
61
require a manufacturer or its authorised representative placing components and subassemblies on the market or putting
them into service to provide the manufacturer of a product
covered by implementing measures with relevant information
on the material composition and the consumption of energy,
materials or resources of the components or subassemblies.
When an implementing measure provides for such a
requirement, doubt as to how to construe components and
subassemblies according to Polish law may arise, especially
that Directive 2009/125/EC defines these terms among
others by referring to the impossibility of making a separate
assessment of the environmental performance of these elements. The definition included in Directive 2009/125/EC is
thus so specific that the common understanding of the terms
“component” and “subassembly” may appear inadequate.
Moreover, pursuant to Art. 8 (4) of the Regulation, in the
technical documentation the manufacturer shall include a
copy of the information concerning the environmental aspects
of the manufacture of a product consuming energy which has
an impact on the way of using the product. Whereas from Annex I to Directive 2009/125/EC (Part 2. Requirements relating
to the supply of information) it follows that in appropriate
situations the implementing measures may require the manufacturer to supply information that may influence the way the
product is handled, used or recycled by parties other than the
manufacturer.
Therefore, the wording of the provision of the Regulation
suggests an absolute duty to supply information that may
influence the way the product is handled, whereas Directive 2009/125/EC clearly conditions such duty on the particular implementing measure. As has been stated above,
implementing measures issued on the basis of the Directive
2009/125/EC are in the form of regulations (implementing
regulations) and therefore they are fully binding and directly
applied in all Member States16. Member States cannot undertake activities in order to execute the regulation which could
lead to altering its content17.
Therefore the abovementioned discrepancy between the
wording of the Regulation and the wording of the Directive
2009/125/EC constitutes an incorrect transposition of this
Directive into Polish Law.
It should also be noted that there is an obligation included
in Art. 7 (3) of Directive 2009/125/EC to immediately inform
the Commission and the other Member States of any decisions which commit the manufacturer or its authorised representative to make the product compliant with the provisions
of an applicable implementing measure or the requirements
of CE marking and to stop any infringements, or to provide
information about any decisions that prevent the product being placed on the market or about any order to withdraw the
product from the market (in a case where a product that has
the CE marking and is used for the intended purpose does
not meet all the appropriate provisions of the binding implementing measure.)
This provision has not been transposed into Polish Law
correctly, because from Art. 44 (1) of the Act on Compliance
Assessment Systems it follows that the President of the Office of Competition and Consumer Protection (who, according
to this Act, has appropriate competence in this scope) shall
only inform the European Commission about such decisions.
16. Art. 288 (2) of the Treaty of the Functioning of the European Union, Treaty of the Functioning of the European Union, consolidated version, O J
C 83 of 30.03.2010, p. 47.
17. P
oint 4 of the Judgement of the Court of Justice of 18th February 1970
in the case of Hauptzollamt Hanburg-Oberelbe v. the company of Paul
G. Bollman, reference No of files: 40-69, Collection of Judgements of
1970, p. 69.
62
6. Implementation
Carried out by the manufacturers or their authorised
representatives, checking whether ecodesign requirements have been met is the key issue. As it follows from
the “National Market Surveillance Programme for 2013
for Products Covered by the New Approach Directives”,
which is prepared and handed over to the Commission
and other Member States pursuant to Art. 18 (15) of the
Regulation of the European Parliament and of the Council
EC No 765/2008 of 9th July 2008 setting the requirements
concerning accreditation and market surveillance relating
to the conditions for bringing products to market and revoking Regulation (EEC) No 339/93, the regular activities
of the appropriate surveillance authorities focusing, among
other things, on issues connected with ecodesign requirements are declared.
The reports of Inspectorates of Trade Inspection for
particular provinces include information on the controls
which check whether ecodesign requirements have
been met. Therefore it seems that the necessary means
of implementing in practice the provisions of Directive
2009/125/EC have been taken.
7. The achievement of the goals
of Directive 2009/125/EC
No separate quantitative aim is specified in Directive
2009/125/EC (e.g. in the form of achieving a certain
amount of energy saving). In Art. 1 (1) of Directive
2009/125/EC its aim is specified as ensuring the free
movement of energy-related products on the internal market as the result of establishing a framework for the setting
of ecodesign requirements for energy-related products.
Due to the fact that the framework for the setting of these
requirements has been specified in the Directive, it may
be understood that this general aim has been achieved.
However, it should be emphasised that it is very important
to enforce in practice that the ecodesign requirements are
met. Moreover, the requirements stipulated by Directive
2009/125/EC are connected to energy efficiency improvement and to achieving the target values of greenhouse gas
emissions in the European Union. Therefore compliance
with the provisions of Directive 2009/125/E should be also
assessed in the context of these general aims (i.e. the EU
aim of increasing energy efficiency by 20 % and reducing
CO2 emissions by 20 % by 2020). Final verification of how
the regulations concerning ecodesign contribute to achieving these aims will be possible in 2020.
63
Directive on Product
Information about the
Consumption of Energy1
Agata Bator
64
1. Aims of the Directive
The aim of Directive 2010/30/EU of the European Parliament and of the Council of 19 May 2010 on the indication by labelling and standard product information of the
consumption of energy and other resources by energyrelated products (OJ L 153 of 18.06.2010 p. 1, hereinafter
called “Directive 2010/30/EU”) is to improve the efficiency
of energy-related products by enabling consumers to
make more conscious choices (motive 4 of the preamble of Directive 2010/30/EU). This aim may be achieved
in particular by the provision of accurate, relevant and
comparable information on the specific energy consumption of energy-related products, which should influence
the end-user’s choice in favour of those products which
consume less energy and other essential resources during
use, thus prompting manufacturers to take steps to reduce
the consumption of energy and other essential resources
of the products which they manufacture and also indirectly
encourage the efficient use of these products (motive 5 of
the preamble of Directive 2010/30/EU). The abovementioned aim of Directive 2010/30/EU is part of the general
EU aim to reduce energy consumption in the European
Union by 20 % by 2020 (motives 3 and 5 of the preamble
of Directive 2010/30/EU).
2. Basic resolutions of Directive
2010/30/EU
Directive 2010/30/EU establishes a framework for the
harmonisation of national measures on end-user information on the consumption of energy (and where relevant of
other resources) during the use of products, particularly
by means of labelling and standard product information
concerning energy-related products, thereby allowing endusers to choose more efficient products.
Directive 2010/30/EU applies to energy-related
products which have a significant direct or indirect impact
on the consumption of energy and, where relevant, on
other essential resources during use (such as e.g. water).
Categories of such products and detailed requirements
concerning them are laid down by the Commission by
means of delegated acts in accordance with Articles 10 to
13 of this Directive. In Art. 2 of Directive 2010/30/EU basic
terms are defined, such as: ‘dealer’, ‘supplier, ‘placing on
the market’ and ‘putting into service’. ‘Supplier’ means the
manufacturer or its authorised representative in the Union
or the importer who places or puts into service the product
on the Union market (in their absence, any natural or legal
person who places on the market or puts into service products covered by Directive 2010/30/EU shall be considered
a supplier). ‘Dealer’ means retailer or other person who
sells, rents, offers for hire-purchase or displays products to
end-users. ‘Placing on the market’ means making a product available for the first time on the Union Market with a
view to its distribution or use within the Union, whether
for reward or free of charge and irrespective of the selling
technique. ‘Putting into service’ means the first use of the
product for its intended purpose in the Union.
Directive 2010/30/EU requires that the suppliers and
dealers of the product covered by this Directive have
certain obligations as to informing the public about the
energy consumption of these products. According to Art. 5
1. Directive 2010/30/EU of the European Parliament and of the Council of
19 May 2010 on the indication by labelling and standard product information of the consumption of energy and other resources by energy-related
products (OJ L 153 of 18.06.2010, p. 1)
on 20.VI.2011. Directive
transposed with faults.
65
of Directive 2010/30/EU, suppliers placing on the market
or putting into service a product covered by this Directive
should supply a label and a fiche, that is a standard table
of information relating to the product (detailed requirements concerning labels and fishes are included in the
appropriate delegated acts).
Moreover, suppliers should produce technical documentation which is sufficient to enable the accuracy of
the information contained in the label and in the fiche to
be assessed. Such documentation should be kept for a
period of 5 years after the last product concerned was
manufactured, and it should be available on request to the
market surveillance authorities of the Member States and
to the Commission within 10 working days of receipt of the
request. Suppliers should provide the necessary labels
free of charge to dealers.
Suppliers should include a product fiche in all product
brochures or in other literature provided with the product.
At the same time, dealers are obliged to display labels
properly, in a visible and legible manner and make the
fiche available in the product brochure or other literature
that accompanies products when sold to end-users. According to Art. 6 of Directive 2010/30/EU, there is also a
duty to display the information included in the label and
product fiche when the products are offered for sale or hire
from a distance (the details are specified by appropriate
delegated acts).
Member States should have the possibility to make
the supplier ensure that the product meets all the requirements specified in Directive 2010/30/EU as well as in
appropriate delegated acts. If a product does not comply
with all the relevant requirements a Member State should
take a decision restricting or prohibiting the placing on the
market or putting into service of the product in question or
ensuring that it is withdrawn from the market (Art. 3 (2) of
Directive 2010/30/EU).
Additionally, Directive 2010/30/EU requires that any
advertisement for a specific model of energy-related
products covered by a delegated act under this Directive includes, where energy-related or price information
is disclosed, a reference to the energy efficiency class of
the product and that any technical promotional material
concerning energy-related products which describes the
specific technical parameters of a product is provided to
end-users with the necessary information regarding energy consumption or shall include a reference to the energy
efficiency class of the product (Art. 4 (c) (d) of Directive
2010/30/EU).
Member States should lay down the rules on the
penalties applicable for infringements of the national provisions adopted pursuant to Directive 2010/30/EU and its
delegated acts and notify these provisions to the Commission by 20 June 2011 (Art. 18 of Directive 2010/30/EU).
2010/30/EU
Directive 2010/30/EU entered into force on 19 June 2010
(Art. 18 of Directive 2010/30/EU, the first sentence).
However, the articles concerning the duty of suppliers to
provide the labels and information about the products to
dealers, the responsibility of the suppliers to provide accurate labels and fiches concerning the products and the
presumption that the suppliers have given consent to the
publication of the information provided on the label or in
the fiche (Art. 5 (d) (g) (h) of Directive 2010/30/EU) have
been applicable since 31 July 2011 (Art. 18 of the Directive
2010/30/EU, the second sentence).
4. Time for implementation
in the national law
Member States should have brought into force the laws,
regulations and administrative provisions necessary to
comply with the provisions of Directive 2010/30/EU by 20
June 2011 at the latest (Art. 16 of the Directive 2010/30/
EU, the first sentence). Member States should apply those
provisions from 20 July 2011 (Art. 16 of Directive 2010/30/
EU, the second sentence).
5. Transposition into national law
Directive 2010/30/EU was transposed into Polish law by
the Act of 14 September 2012 on Obligations to Provide
66
Information about the Energy Consumption of Energy-Related Products2 (hereinafter called ‘Act on Obligations’).
Irrespectively of the fact that the resolutions transposing
Directive 2010/30/EU were passed with a long delay from
the time limits required by this Directive, some defects
may be noticed. Pursuant to Art. 2 (1) and (2) of the Act
on Obligations, its provisions shall be applied to energyusing products to which certain requirements as to making technical documentation, labelling and using fiches
apply. The requirements are specified by the acts of the
European Commission and are issued on the basis of the
qualifications delegated by the European Parliament and
by the Council.
The list of such acts is announced by the Minister
of the Economy by official announcement in the Polish
Official Journal of Laws and Statues “Monitor Polski”
[Official Gazette of the Government of the Republic of
Poland]. The abovementioned delegated acts are issued
on the basis of Art. 290 of the Treaty on the Functioning of
the European Union3 (hereinafter called “TFEU”) and the
relevant qualifications granted to the Commission in Art.
10 of Directive 2010/30/EU. The delegated Acts may have
the form of regulations, directives or decisions.4
The delegated acts issued on the basis of Directive
2010/30/EU are in the form of regulations (delegated
regulations) thus they are fully binding and are directly applicable in all Member States.5 From the effective date, the
Regulation shall be a part of the national law of a Member
State and be applied directly, without the necessity of being transposed into national law. Introducing the regulation
into national law, e.g. by issuing an Act, is simply unacceptable since this would lead to blocking of the direct
effectiveness of regulations and their community character
(business units would then think that their situation in a
given matter is regulated by the national, not Union law).6
Member States cannot adopt “any measure which
would conceal from the persons it applies to its community
nature and the results of any legal decision”.7 The solution applied by Polish legislator in Art. 2 (1) (2) of the Act
on Obligations should not be considered as incompliant
with the abovementioned principles because in this Article
there is a clear reference to EU delegated acts, and the
list of these acts officially announced by the Minister of the
Economy is not of a legislative character, it is only informative.
Nevertheless, some significant deficiencies of this
solution should be indicated. First of all, Art. 2 (2) of the
Act on Obligations does not mention the frequency of
making official announcements of the list of delegated
acts, it also does not impose an obligation to update the
list. Meanwhile, according to Art. 11 of Directive 2010/30/
EU the powers to adopt the delegated acts referred to in
this Directive have been conferred to the Commission for
a period of five years beginning on 19 June 2010 with the
possibility to extend this period for another five years.
Therefore it can be expected that at least until 19 June
2015 there will be new regulations of the Commission
in this respect. So far the Commission has issued eight
delegated regulations (delegated acts regarding energy2. Dz. U. of 2012, item 1203
3. Treaty on the Functioning of the European Union, consolidated version, OJ C 83 of 30.03.10, p.
4. A. Wyrozumska [w:] J. Barcz, M. Górka, A. Wyrozumska „Instytucje i prawo Unii Europejskiej”, Warsaw 2012, p. 330.
5. Art. 288 (2) of the Treaty on the Functioning of the European Union, Treaty on the Functioning of the European Union, consolidated version, OJ C 83 of
30.03.10, p. 47
6. A. Wyrozumska [w:] J. Barcz, M. Górka, A. Wyrozumska „Instytucje i prawo Unii Europejskiej”, Warsaw 2012, p. 237, and case 34/73 Variola, LexPolonica
No 348040.
7. See: A. Wyrozumska [w:] J. Barcz, M. Górka, A. Wyrozumska „Instytucje i prawo Unii Europejskiej”, Warsaw 2012, p. 237, and case C-253/00 Munoz, LexPolonica 356992.
67
efficiency labels for: household washing machines,8
household dishwashers,9 TV sets,10 household refrigerators,11 air-conditioners,12 household tumble-driers,13
electric lamps and light fixtures,14 and vacuum cleaners15).
Whereas the official announcement of the Minister of the
Economy of 26 February 2013 on the list of delegated
acts16 includes only the first seven of the abovementioned
regulations, it does not include the delegated regulation of
the Commission (EU) No 665/2013 of 3 May 2013 supplementing Directive 2010/30/WE of the European Parliament
and of the Council on the energy-efficiency labelling of
vacuum cleaners, which was issued after publishing this
8. Delegated Act of the Commission (EU) No 1061/2010 of 28th September 2010 supplementing Directive 2010/30/WE of the European Parliament and of the
Council regarding energy efficiency labels for household washing machines, OJ L 314 of 30.11.2010, p. 47.
9. Delegated Act of the Commission (EU) No 1059/2010 of 28th September 2010 supplementing Directive 2010/30/WE of the European Parliament and of the
Council regarding energy efficiency labels for household dishwashers, OJ L 314 of 30.11.2010, p. 1.
10. Delegated Act of the Commission (EU) No 1062/2010 of 28th September 2010 supplementing Directive 2010/30/WE of the European Parliament and of
the Council regarding energy efficiency labels for TV sets, OJ L 314 of 30.11.2010, p. 64.1. 11. Delegated Act of the Commission (EU) No 1060/2010 of 28th September 2010 supplementing Directive 2010/30/WE of the European Parliament and of
the Council regarding energy efficiency labels for household refrigerators, OJ L 314 of 30.11.2010, p. 17.
12. Delegated Act of the Commission (EU) No 626/2011 of 4th May 2011 supplementing Directive 2010/30/WE of the European Parliament and of the Council
regarding energy efficiency labels for air-conditioners, OJ L 178 of 06.07.2011, p. 1.
13. Delegated Act of the Commission (EU) No 392/2012 of 1 March 2012 supplementing Directive 2010/30/WE of the European Parliament and of the Council
regarding energy efficiency labels for household tumble-dryers, OJ L 123 of 09.05.2012, p. 1.
14. Delegated Act of the Commission (EU) No 874/2012 of 12 July 2012 supplementing Directive 2010/30/WE of the European Parliament and of the Council
regarding energy efficiency labels for electrical lamps and light fixtures, OJ L 258 of 26.09.2012, p. 1.
15. Delegated Act of the Commission (EU) No 665/2013 of 3 May 2013 supplementing Directive 2010/30/WE of the European Parliament and of the Council
regarding energy efficiency labels for vacuum cleaners, OJ L 192 of 13.07.2013, p. 1.
16. Monitor Polski of 2013, item 168.
68
official announcement. In a relatively short time after publishing the list of delegated acts, the list became invalid. At
present the wording of Art. 2 (1) (2) of the Act on Obligations could mislead business units as to the current legal
status of the catalogue of products covered by Directive
2010/30/WE and the delegated acts issued on the basis
of this Directive (taking into consideration the fact that this
provision does not concern the issue of delegated acts issued after the date of publishing the first official announcement of the list of delegated acts).
However, the wording of Articles 19 and 20 of the Act
on Obligations should be noted. These Articles specify the
qualifications of the Trade Inspection and the President
of the Office of Electronic Communications concerning
the surveillance of energy-using products placed on the
market or put into service. According to Art. 19 of the Act
on Obligations altering Art. 3 of this Act of 15 December
2000 on Trade Inspection17, one of the tasks of the Trade
Inspections is to control whether the requirements specified in the delegated acts issued on the basis of Directive
2010/30/EU concerning household washing machines,
household dishwashers, TV sets, household refrigerators
The regulations on
information on energy usage
allow final users to choose
more efficient products.
and air-conditioners are met. The President of the Office
of Electronic Communications has been equipped with
analogical qualifications concerning TV sets (Art. 199 (1)
(b) of the Act of 16th July 2004 – Telecommunications
Law18). When the catalogue of products covered by the
surveillance of the Trade Inspection and the President
of the Office of Electronic Communications is compared
to the products covered by the delegated acts enumerated in the official announcement of the Minister of the
Economy of 26 February 2013 on the list of delegated
acts19, it is evident that no clear surveillance qualifications
are granted as regards household tumble dryers, electrical lamps and light fixtures. Moreover, the problem of the
lack of an obligation to update the list of delegated acts
issued on the basis of Directive 2010/30/EU, which has
already been mentioned, reoccurs. Taking into consideration the delegated acts that have already been issued
by the Commission, it can be noticed that there are also
no clear surveillance qualifications granted in relation to
vacuum cleaners. As has already been mentioned above,
delegated regulations are fully binding and are directly applied in all Member States and they become a part of the
national legal orders without the need to transpose them.
At the same time, some general qualifications of the Trade
Inspection result from Art. 3 (1) points 1 and 1 (a) of the
Act of 15 December 2000 on Trade Inspection20 according
to which one of the tasks of the Trade Inspection is the
surveillance of the lawfulness and the reliability of manufacturers running a business activity within the meaning of
the separate provisions concerning production, trade and
services, as well as the surveillance of whether products
placed on the market are compliant with the basic or other
requirements specified in the separate provisions, excluding products that are subject to the supervision of other
competent authorities. The surveillance qualifications
necessary in order to check whether the requirements
specified in delegated acts issued on the basis of Directive
2010/30/EU in regards to household tumble-driers, electrical lamps and light fixtures and vacuum cleaners can
therefore be generated from these provisions and from
the directly applicable delegated acts. However, on the
other hand, the fact that the Act of 15 December 2000 on
Trade Inspection21 grants these surveillance qualifications
only in regards to some products covered by delegated
acts issued on the basis of Directive 2010/30/EU raises
doubt as to the interpretation concerning the scope of the
qualifications of the competent authorities in relation to the
17. D
z. U. of 2009 No 151, item 1219, consolidated text, with subsequent
alterations.
18. D
z. U. of 2004 No 171, item 1800, with subsequent alterations.
19. M
onitor Polski of 2013, item 168.
20. D
alterations.
21. D
alterations.
69
rest of these products. Such a solution should therefore be
assessed negatively. It seems that a general reference to
the products covered by the delegated acts issued on the
basis of Directive 2010/30/EU would be a better solution.
Also the following circumstance should be noted:
Directive 92/75/EEC of 22 September 1992 on the indication by labelling and standard product information of the
consumption of energy and other resources by household
appliance (hereinafter called “Directive 92/75/EEC”)22,
which preceded Directive 2010/30/EU, was transposed
into Polish law by introducing the Act of 10 April 1997 –
Energy Law23 (hereinafter called “Energy Law”) Articles 52
to 53 (a). Pursuant to Art. 52 of the Energy Law, the manufacturers and importers of appliances shall specify in the
technical documentation, the fuel and energy consumption
level compared to the obtained value of the product operational efficiency in operating conditions (energy efficiency),
and the manufacturers and importers of the products
placed on the market shall provide information about the
product energy efficiency on the label and in the technical
specifications. Pursuant to Art. 52 (4) (5) of the Energy
Law, the Minister of the Economy may specify, by means
of a regulation, the requirements concerning energy efficiency which should be met by these products, taking into
consideration the necessity to protect the interests of the
end-users, as well as the requirements concerning technical documentation, using labels and technical specifications, and label design. Art. 53 of the Energy Law prohibits
the placing on the national market products which are
non-compliant with the requirements specified in Art. 53 of
the Energy Law. Directive 2010/30/EU significantly differs
from Directive 92/75/EEC, thus one should pay attention
to the possible discrepancies between the provisions of
Articles 52 to 53 (a) of the Energy Law and the executive provisions issued on the basis of Art. 52 (4) )5) of the
Energy Law and the transposing provisions and issued on
the basis of Directive 2010/30/EU.
It seems that such discrepancies could be resolved
by means of conflict-of-laws principles (in particular lex
posterior derogat legi priori – the later law cancels earlier
laws), however not revoking or not modifying Articles 52
to 53 (a) of the Energy Law and the executive provisions
issued on the basis of Art. 52 (4) (5) of the Energy Law
while transposing Directive 2010/30/EU results in the
fact that the legal status of the requirements concerning
labelling, fiches and technical documentation regarding
energy-related products is complex and can be unclear
for market players.
6. Implementation
Due to the fact that the Act on Obligations has been in
effect for a short period of time (it entered into force on
1 February 2013) it is at present (September 2013) hard
to assess the level of the practical implementation of
Directive 2010/30/EU, including, for example the level of
preparation of the competent authorities that are to supervise whether the provisions transposing the Directive into
Polish law and the delegated acts issued on the basis of it
are observed.
It should be noted that in relation to the provisions
transposing Directive 92/75/EEC, the President of the
Energy Regulatory Office is the authorised body to impose
penalties for placing equipment that does not comply with
the requirements specified in Art. 52 of the Energy Law
on the national market. From the reasons of the draft of
the Act on Obligations it appears that the abovementioned
provision concerning imposing penalties by the President
of the Energy Regulatory Office has not been applied in
practice.
Therefore the surveillance system has been altered in
order to ensure that the provisions concerning providing
information about energy consumption are observed: the
Trade Inspection and the Office for Electronic Communications have been equipped with the appropriate qualifications and the President of the Office of Competition and
Consumer Protection has been entrusted with the task of
monitoring this control system pursuant to Art. 11 (1) of the
act about Obligations. Due to the fact that the provision
concerning the imposition of penalties by the President
of the Energy Regulatory Office has not been applied in
practice it is impossible to refer to any practical experience
gained on the basis of the provisions that were previously
in force and an assessment of the surveillance system implemented by the Act on Obligations will be possible only
after its having functioned for some time.
22. O
J L 297 of 13.10.1992, p. 16
23. O
J of 2012, item 1059, consolidated text
70
7. Achievement of the goals
of Directive 2010/30/EU
No separate aim (e.g. quantitative) is specified in Directive 2010/30/EU, but the requirements of this Directive
have been connected to the general aim that is a reduction of energy consumption in the European Union by
20 % by 2020. An assessment of how information about
the energy consumption of energy-consuming products
contributes to achieving this aim will be possible some
time after the implementation of the provisions (pursuant to Art. 14 of the Directive 2010/30/EU the Commission should review the effectiveness of this Directive by
31 December 2014), and the final verification of whether
the aim, that is the reduction of energy consumption by
20 %, has been achieved, will be possible in 2020.
8. Procedures initiated
The European Commission instituted proceedings connected with the lack of the notification of national legal
acts which transposed Directive 2010/30/EU (Infringement No according to the records of the European
Commission: 2011/0916). On 26 March 2012 a justified
opinion of the European Commission was directed to
Poland. The proceedings were exercised pursuant to
Art. 258 of the Treaty on the Functioning of the European Union. As of 21 February 2013, the proceeding
was still in progress.
71
Directive on the Energy
Performance of Buildings1
Agata Bator
72
1. Objectives of the Directive
The objectives of the Directive of the European Parliament
and of the Council 2010/31/EU of May 19, 2010 on the
energy performance of buildings (Official Journal of the EU
L 153 of 18.06.2010, p. 13, hereinafter: “Directive 2010/31/
EU”) are the limitation of energy use and an increase in
the use of renewable energy sources in the sector of buildings, via the promotion of the improvement of energy performance of buildings in the European Union.
This objective forms a part of the general priority
which is the improvement of energy efficiency and the decrease, by 2020, of energy consumption in the Union by
20% (paragraph 5 of the preamble of Directive 2010/31/
EU). Directive 2010/31/EU requires that the objective above be implemented with the use of unrealised potential of
energy savings in buildings and the reduction of significant
differences between the results of Member States in this
sector (paragraph 7 of the preamble of Directive 2010/31/
EU) via the improvement of the energy performance of buildings, taking into account the climatic and local conditions, indoor climate environment and cost-effectiveness
(paragraph 8 of the preamble of Directive 2010/31/EU).
In relation to the above, Member States should determine minimum requirements regarding the energy performance of buildings and building elements (paragraph 10
of the preamble of Directive 2010/31/EU) and subsequently ensure that new buildings or buildings undergoing major renovations comply with these minimum requirements
(paragraph 16 of the preamble of Directive 2010/31/EU).
Subsequent detailed objectives of Directive 2010/31/
EU include an increase in the number of buildings with near-zero energy demand (paragraph 17 of the preamble
of Directive 2010/31/EU) and the provision of prospective
buyers and lessees of buildings or building modules with
correct information regarding the energy performance of a
building, by preparing energy performance certificates (paragraph 22 of the preamble of Directive 2010/31/EU).
An example within the scope of the energy performance of buildings should be set by public authorities (paragraph 24 of the preamble of Directive 2010/31/EU). Furthermore, Directive 2010/31/EU emphasizes the necessity of levelling rules within the scope of efforts made by the
Member States for the purpose of energy savings on the
community real estate market (section 27 of the preamble
of Directive 2010/31/EU).
unit”, “major renovation”, “energy performance certificate”
and “cost-optimal level.”
In line with Art. 4 of Directive 2010/31/EU, Member
States should determine the minimum requirements regarding the energy performance of buildings or building units
with a view to achieving cost-optimal levels. The methodology of calculating the energy performance of buildings
should comply with the common general framework determined in Schedule I to Directive 2010/31/EU. On the other
hand, the calculation of cost-optimal levels should comply with the framework of comparative methodology determined by the Commission in Delegated Regulation No.
244/2012 of January 16, 2012 supplementing Directive
2010/31/EU (“Regulation”).2
The minimum requirements regarding the energy performance of buildings should be reviewed at equal periods
of time not exceeding five years and, if need be, up-dated
for the purpose of taking into account technical progress in
the building sector. In line with Art. 5.2 and 5.3 of Directive
2010/31/EU, every Member State should calculate the cost-optimal level of minimum requirements regarding energy performance with the use of comparative methodology framework determined in the Regulation, taking into account individual parameters for every state, such as climate conditions and the practical availability of energy infrastructure, and subsequently compare the results of such
calculation with the binding minimum requirements regarding energy performance.
If the result of such a comparison indicates that the minimum binding requirements for energy performance are
definitely less energy efficient that the cost-optimal level of
minimum requirements regarding energy performance, a
Member State should present the Commission with a justification of this difference, and to the degree in which such
a difference is not justified, additionally present a plan showing steps aimed at a significant reduction of the difference before the next inspection of requirements regarding
energy performance. The Member State provide the Com-
2. Basic Provisions of Directive
2010/31/EU
Directive 2010/31/EU promotes the improvement of the
energy performance of buildings in the Union, taking into
account outdoor climate conditions, local conditions and
requirements regarding indoor climate and cost effectiveness (Art. 1 of Directive 2010/31/EU).
Art. 2 of Directive 2010/31/EU formulates definitions
of the most important terms, including definitions of “building”, “nearly zero-energy building”, “technical building
system”, “energy performance of a building”, “building
1. Directive of the European Parliament and of the Council 2010/31/EU of
May 19, 2010 on the energy performance of buildings (Official Journal of
the EU L 153 of 18.06.2010, p. 13)
2. Regulation No. 244/2012 of January 16, 2012 supplementing Directive 2010/31/EU establishing a comparative methodology framework for
calculating cost-optimal levels of minimum energy performance for buildings and building units, Official Journal of the European Union L 081 of
21.03.2012, p. 18.
73
on 9.VII.2012. Directive
transposed partly.
mission with reports on all entry data and assumptions
used for the purpose of the above calculation of the costoptimal level of minimum requirements regarding energy
performance and the results of such calculations, at regular time intervals not exceeding five years. The first report
was due for submission at the latest on June 30, 2012.
Similar principles should apply during the performance of major renovations of buildings: energy performance
of such a building or its part subjected to renovations should be adjusted so that it complies with the minimum requirements regarding energy performance, taking into account its technical, functional and economic potential. Furthermore, for the purpose of optimizing the consumption of
energy in building technical systems3, the requirements regarding the general energy performance of such systems
should be determined, along with their correct installation,
regulation and control (in reference to systems installed in
already existing buildings).
In line with Art. 6 of Directive 2010/31/EU, every Member State shall ensure that, before construction
starts, the technical, environmental and economic feasibility of high-efficiency alternative systems such as those
listed below, if available, is considered and taken into account: (i) decentralised energy supply systems based on
energy from renewable sources, (ii) cogeneration, (iii) district or block heating or cooling, particularly where it is
based entirely or partially on energy from renewable sources, (iv) heat pumps.
Directive 2010/31/EU also stipulates that after December 31, 2018 new buildings occupied by public authorities or buildings which are the property of public authori-
ties should be buildings with near-zero energy consumption. Other newly constructed buildings should be buildings with near-zero energy consumption after December 31, 2020. It is necessary to emphasize that the definition of a building with near-zero energy consumption contained in Directive 2010/31/EU is very general, whereas Member States should independently determine a detailed definition in their domestic plans aimed at the increase in the number of buildings with near-zero energy
consumption. Such plans should also contain indirect objectives for the improvement of the energy performance
of new buildings for the year 2015.
Member States are also required to analyse the financing measures and other instruments that will be adequate
in a given state to support the improvement of the energy
performance of buildings and their transformation into buildings with near-zero energy consumption. A list of such
measures and instruments should be prepared by June
30, 2011 and provided to the Commission and be subsequently updated every three years.
Directive 2010/31/EU also requires the establishment
of a system of certification for the energy performance of
buildings within the scope of which energy performance
certificates will be issued, determining the energy performance of a building, and reference values, such as the minimum requirements regarding energy performance. Energy performance certificates should be issued for buildings
or building units which are constructed, sold or leased to
a new lessee, as well as for buildings where the total utility surface exceeding 500 m2 is taken up by public authorities and which are often visited by the population (on July
9, 2015, the threshold of 500 m2 will be decreased to 250
m2). Certificates of the energy performance of buildings
should be presented to potential new buyers or lessees
and provided to buyers and lessees. In the case of buildings where public authorities occupy a total utility surface exceeding 500 m2, and the building is frequently visited
by people, as well as in the case of buildings with total utility surface exceeding 500 m2, frequently visited by people,
energy performance certificates issued for such buildings
should be placed in a visible place. In the case of buildings
occupied by public authorities, on July 9, 2015, the threshold of 500 m2 is decreased to 250 m2.
Directive 2010/31/EU also requires regular inspections
of systems used for heating the buildings (with power above 20kW) and air-conditioning systems (with power above
12 kW). Reports should be prepared and published after
such inspections. Energy performance certificates for buildings should be issued and inspections of heating and cooling systems should be conducted by independent, qualified or accredited experts. Lists of qualified or accredited experts should be regularly updated and made publicly
available. An independent control system for energy performance certificates should be established, along with reports from the inspections of heating and cooling systems,
whereas owners and lessees of buildings or building units
should have ensured access to information about methods
of improvement of energy performance.
Additionally, Art. 27 of Directive 2010/31/EU requires
Member States to determine principles regarding sanctions applied in the case of the violation of the domestic
provisions adopted pursuant to the directive, and to inform
the Commission about such provisions at the latest by January 9, 2013.
3. In line with Art. 2.3 of Directive 2010/31/EU, building technical systems
mean technical equipment for the heating, cooling, ventilation, hot water
and lighting of a building.
74
2010/31/EU
Directive 2010/31/EU entered into force on the twentieth
day after its announcement in the Official Journal of the
European Union, i.e. on July 8, 2010 (Art. 30 of Directive
2010/31/EU).
4. Deadline for implementation
in the domestic law
In line with Art. 28 of Directive 2010/31/EU, the deadline
for the transposition of its provisions to domestic legal orders of the Member States is July 9, 2012. Furthermore,
Art. 28 of Directive 2010/31/EU determines deadlines for
the implementation (i.e. application) of the individual provisions of this directive. In reference to provisions regarding:
(i) the definitions of basic terms, (ii) the determination of a
methodology for calculating the energy performance of buildings, (iii) buildings with near-zero energy consumption,
(iv) energy performance certificates of buildings (including
their issuance and placement in visible places), (v) independent experts issuing energy performance certificates
for buildings and performing inspections of heating and cooling systems, (vi) an independent control system for energy performance certificates and reports from inspections
of heating and cooling systems, (vii) the provision of information about various models and practices used for the
improvement of energy performance to citizens, and (viii)
sanctions applied in the case of a violation of the domestic provisions adopted for the purpose of the implementation of Directive 2010/31/EU – the implementation deadline was January 9, 2013.
In reference to the provisions of Directive 2010/31/
EU regarding: (i) minimum requirements regarding energy
performance, (ii) the cost-optimal level of minimum requirements regarding energy performance, (iii) the compliance, by new buildings, with the minimum requirements regarding energy performance, (iv) the compliance with minimum requirements regarding energy performance in the
case of major renovations of existing buildings, (v) the requirements regarding building technical systems, (vi) in-
spections of heating and cooling systems, as well as reports from such inspections – the deadline for implementation depends on whether in a given case such provisions
are applied to buildings occupied by public authorities or to
other buildings. In reference to buildings occupied by public authorities, such provisions should be implemented at
the latest by January 9, 2013, whereas in the case of other
buildings – at the latest by July 9, 2013.
5. Transposition to domestic law
By adoption of a regulation of the Minister of Transport,
Construction and Maritime Economy of 5 July, 2013,
amending a regulation on technical conditions for buildings and their location4, Art. 4 of Directive 2010/31/EU,
which requires that Member States should determine the
minimum requirements regarding the energy performance of buildings or building units with a view to achieving
cost-optimal levels, has been transposed to the Polish legal order.
By adoption of a regulation of the Minister of Transport, Construction and Maritime Economy of 21 June 2013
amending a regulation on the detailed scope and form of
a construction project5, Art. 6 of Directive 2010/31/EU has
been transposed to the Polish legal order. The aforesaid
article requires that every Member State shall ensure that,
before construction starts, the technical, environmental
and economic feasibility of high-efficiency alternative systems such as those listed below, if available, is considered and taken into account: (i) decentralised energy supply
systems based on energy from renewable sources, (ii) cogeneration, (iii) district or block heating or cooling, particularly where it is based entirely or partially on energy from
renewable sources, (iv) heat pumps.
The remaining provisions of Directive 2010/31/EU
have not been transposed to the Polish legal order in spite
of the deadline for transposition set in the directive.
On April 16, 2013, the Council of Minister adopted the
premises of a draft act about the energy performance of
4. Journal of Laws item 926.
75
buildings (“Premises”) aimed at the transposition of the
provisions of Directive 2010/31/EU to the Polish legal order.6 In line with the Premises, for the purpose of the
transposition of Directive 2010/31/EU, apart from the adoption of an act on the energy performance of buildings
and adoption of the aforesaid regulations, the provisions
of a regulation of, regulation of the Minister of Transport,
Construction and Maritime Economy of April 25, 2012
on the detailed scope and form of a construction project7
and regulation of the Minister of Infrastructure of July 3,
2003 on the logbook of a construction facility8 shall also
be amended.
Furthermore, in line with the Premises, the transposition of Directive 2010/31/EU and entry into force of the act
on energy performance of buildings will cause the necessity of issuing the following executive acts: (i) regulation
on the methodology of determining the energy performance of buildings or parts of buildings, the manner of preparing and the template of energy performance certificate,
(ii) regulation on the register and control of energy performance certificates for buildings and building units and control reports on inspections of heating and cooling systems,
and (iii) regulation on mandatory civil liability insurance of
a person preparing energy performance certificates for buildings or building units. It is necessary to emphasize that
the adoption of the premises of the draft act constitutes
only an initiatory stage of the legislative process and on
every subsequent stage of this process (work on the draft
act on the governmental stage, work in the Sejm and the
Senate, provision of the act for the President’s signature) the introduction of changes is possible, even changes
which may significantly influence the shape of the proposed solutions.
Moreover, the premises of draft acts are general documents, indicating the directions in which the future re-
gulation will go and areas to which the regulation will refer. Therefore, at the current initial stage of legislative
work on the transposition of Directive 2010/31/EU, it is
impossible to evaluate the degree to which the planned
act and regulations will constitute a correct transposition of the EU provisions. Nevertheless, relying solely on
the content of the Premises, it is possible to indicate certain inconsistencies. Directive 2010/31/EU requires that
the energy performance certificate for a building or a building unit or its copy is presented to the potential new lessee or buyer. Therefore, the Directive clearly differentiates two situations: the presentation of a certificate or its
copy to a potential buyer or a lessee (for the purpose of
acquiring knowledge about energy performance of buildings or building units before making the purchase) and
the provision of the certificate to the buyer or the lessee
(who already decided to make the purchase or lease).
The Premises do not properly reflect these two situations. They only refer to the provision of an energy performance certificate or its copy to the buyer (or the lessee)
at the latest on the day when the agreement is concluded
on the basis of which the transfer of ownership of the building or its part will be made (or on the date of the conclusion of a lease agreement).9 The Premises do not propose provisions enabling potential buyers or lessees to obtain information about the energy performance of a building
or a building unit in advance, before making the final decision about the purchase or the lease.
Directive 2010/31/EU constitutes a transformation of
the Council of December 16, 2002 on the energy performance of buildings10 (“Directive 2002/91/EC”). For the purpose of transposing Directive 2002/91/EC, several legal
acts were adopted (with certain delays with respect to the
deadlines stipulated in the directive11), in particular two-ti-
6. http://www.transport.gov.pl/2-482d4e0d266e3-1796138-p_1.htm, draft premises of the act on energy performance of buildings, version of March 28, 2013,
http://legislacja.rcl.gov.pl/lista/1/projekt/36518/katalog/36551,
8. Journal of Laws No. 120, item 1134.
9. Draft premises of the act on energy performance of buildings, version of March 28, 2013 http://legislacja.rcl.gov.pl/lista/1/projekt/36518/katalog/36551, p. 7.
10. Official Journal of the European Union L 001 of 04.01.2003, p.65
76
me updates of the Construction Law of July 7, 199412, an
amendment of the regulation of the Minister of Infrastructure on the technical conditions to be fulfilled by buildings
and their location of April 12, 200213 and a regulation of the
Minister of Infrastructure on the detailed scope and form of
construction design of July 3, 200314, as well as three new
regulations: the regulation of the Minister of Infrastructure
of January 21, 2008 on the conduct of training and examination for people applying for a license for preparing energy performance certificates of buildings, residential premises or building units constituting an independent technical
and utility whole15, the regulation of the Minister of Infrastructure of November 6, 2008 on the methodology of calculating the energy performance of buildings and residential premises or building units constituting an independent
technical and utility whole and the manner of preparation
and templates of energy performance certificates16 and the
regulation of the Minister of Finance on mandatory civil liability insurance of persons preparing energy performance certificates of buildings, residential premises or building
units constituting an independent technical and utility whole of December 28, 200917.
Directive 2010/31/EU introduces so many changes in
comparison to Directive 2002/91/EC that for the purpose
of its transposition, it is necessary to introduce, to the Polish legal order, completely new solutions (for example obligations related to buildings with near-zero energy consumption which were not present in Directive 2002/91/
EC), as well as a change in the provisions introduced for
the purpose of the transposition of Directive 2002/91/EC
(for example a change in the existing system of evaluation
of energy performance of buildings).18
6. Implementation
Assessment of implementation of Directive 2010/31/EU
can be made only with regard to the provisions which have
already entered into force and are binding long enough
(because only on such condition practical application of relevant provisions transposing the directive can be assessed). Whereas, the only provision transposing Directive
2010/31/EU that have already entered into force is a provision requiring ensuring that, before construction starts,
the technical, environmental and economic feasibility of high-efficiency alternative systems is considered and taken
into account. It should be noted, that the Regulation of the
Minister of Transport, Construction and Maritime Economy of 5 July, 2013, amending regulation on technical conditions for buildings and their location will enter into force only on 1 January 2014. Consequently, in this scope,
with regard to public buildings deadline for implementation
of relevant provisions of Directive 2010/31/EU has been
exceeded by almost a year, and with regard to other buildings – by 5 months. On account of the lack of proper provisions in the domestic legal order, an implementation of
Directive 2010/31/EU has not been made in Poland.
7. Implementation of objective
of Directive 2010/31/EUUE
On account of the lack of a transposition of most of provisions of Directive 2010/31/EU and proper implementation of the Directive, its purpose has not been achieved
in Poland.
8. Procedures initiated by the European
Commission
In relation to Poland’s failure to transpose Directive
2010/31/EU on time, on June January 20, 2013 the European Commission sent a reasoned opinion to the Polish
authorities, which mentions Art. 258 of the Treaty on the
Functioning of the European Union19.
11. Member States were required to introduce statutory, executive and administrative provisions indispensable for performance of Directive 2002/91/EC at the
latest by January 4, 2006; meanwhile, amendment of the Construction Law aimed at transposition of this law was made on September 19, 2007 and it entered into force on January 1, 2009.
12. Journal of Laws of 2010, No. 243, item 1623, as amended.
13. Journal of Laws No. 75, item 690 as amended.
14. Journal of Laws No. 120, item 1133, as amended.
17. Journal of Laws No. 224, item 1802.
18.Cf. Draft premises for the act on energy performance of buildings, version of March 28, 2013, http://legislacja.rcl.gov.pl/lista/1/projekt/36518/katalog/36551,
s. 1, 3-4.
19. http://europa.eu/rapid/press-release_MEMO-13-583_pl.htm
77
The Fuel Quality
Directive
Robert Rybski
78
1. The full name of the Directive
the Council of 23 April 2009 amending Directive 98/70/
EC as regards the specification of petrol, diesel and gasoil and introducing a mechanism to monitor and reduce
greenhouse gas emissions and amending Council Directive 1999/32/EC as regards the specification of fuel used
by inland waterway vessels and repealing Directive 93/12/
EEC (OJ L 140, item 88). Hereinafter referred to as The
Fuel Directive or The Directive.
The purpose of the measures provided for in the Fuel
Directive is to contribute to the fulfilment of the objective
specified in the Sixth Community Action Programme1 to
achieve levels of air quality that do not give rise to significant negative impacts on, or risks to, human health and
the environment. The Fuel Directive should also strengthen
the measures provided for in the CAFE Directive2.
Given that the combustion of road transport fuel is responsible for around 20% of Community greenhouse gas
emissions (GHG), the purpose of the Directive is to monitor
and reduce GHG emissions in the fuel life-cycle3. This is to
be achieved through the application of biofuels and alternative fuels as well as reductions in gas flaring and venting at
production sites.
Promoting the application of biofuels, the Fuel Directive
stresses that they have to fulfil the sustainability criteria,
which are specified in the RES Directive4. Support should
be provided only for those biofuels that meet these criteria5.
3.1. Reduction of GHG emissions
The Fuel Directive supplements the already binding EU
legislative acts that regulate fuel quality with a mechanism
of GHG emission monitoring and reduction in connection
with fuel and electricity consumption in road vehicles and
non-road mobile machinery (including inland waterway
vessels when not at sea), agricultural and forestry tractors,
and recreational craft when not at sea.
The Directive introduces the concept of “lifecycle
greenhouse gas emission”, defining it as “all net emissions of CO2, CH4 and N2O that can be assigned to the fuel
(including any blended components) or energy supplied.
This includes all relevant stages from extraction or cultivation, including land-use changes, transport and distribution,
processing and combustion, irrespective of where those
emissions occur.” Emission intensiveness is defined by
calculating GHG emissions per unit of energy.
Member States are obliged to ensure that, together
with information on the total volume of supplied fuel, fuel
1. Decision No 1600/2002/EC of the European Parliament and of the Council of 22 July 2002 laying down the Sixth Community Environment Action Programme.
2. Directive 2008/50/EC of the European Parliament and of the Council of 21
May 2008 on ambient air quality and cleaner air for Europe. 3. See points
8 and 9 of the Preamble to the Fuel Directive.
4. See point 10 of the Preamble to the Fuel Directive and Articles 16-19 of
the Directive 2009/28/EC of the European Parliament and of the Council
of 23 April 2009 on the promotion of the use of energy from renewable
sources and amending and subsequently repealing Directives 2001/77/
EC and 2003/30/EC.
5. See points 11-18 of the Preamble to the Fuel Directive.
on 31.XII.2010. Lack of full
transposition.
79
suppliers provide information on lifecycle GHG emissions
per unit of supplied energy. Moreover, Member states have
to oblige suppliers to gradually reduce GHG emissions, at
least by 6% and at most by 10%, by 31 December 2020.
3.2. Environmental specifications for fuels
The Fuel Directive obliges Member States to ensure
that petrol offered within their territories is marketed only
when it complies with the new specifications. The Directive reduces the acceptable level of aromatic hydrocarbons and increases the maximum limit for the content of
most of oxygenates. The permitted sulphur content has
also been significantly reduced, from the previous level of
150 g/kg to 10 g/kg.
A new specification has been introduced for diesel oil,
which reduces the maximum content of polycyclic aromatic
hydrocarbons, sulphur (from 350 g/kg to 10 g/kg) and
biocomponents, i.e. FAME6 (to 7%). The Directive entitles
Member States to allow the sale of diesel oil with a FAME
content over 7%.
3.3. The content of metallic additives in fuels
MMT7, a metallic additive, is one of the anti-knock agents
added to petrol in place of tetraethylead. As its impact on
human health and environment remains disputable, the
Fuel Directive obliges the European Commission to assess possible threats that result from a widespread use of
MMT and to develop a suitable testing methodology in this
respect.
As far as MMT is concerned the Directive is rather conservative – until the EC prepares a suitable testing methodology, the MMT content cannot exceed 6 mg of manganese
per litre from 1 January 2011 and 2 mg of manganese per
litre from 1 January 20148.
3.4. Sustainability criteria for biofuels
Biofuels discussed in the Directive shall have the same
meaning as in the RES Directive. Detailed regulations
are introduced by adding Articles 7b, 7c, 7d and 7e to the
Directive 98/70/EC, which refer to: sustainability criteria,
the verification of compliance with the sustainability criteria
for biofuels, the calculation of lifecycle greenhouse gas
emissions from biofuels and implementing measures and
reports concerning the sustainability of biofuels. These
provisions remain in accordance with the RES Directive.
Their purpose is to ensure that the negative impact of
biofuels on biological diversity and GHG emissions is minimised at the production stage (the RES Directive) as well
as during fuel blending and controls of their specification
(the Fuel Directive).
Similar to energy from renewable sources that is used
in transport, biofuels that do not fulfil the sustainability criteria cannot be counted towards GHG emission reduction
targets imposed on fuel suppliers.
Pursuant to Article 5 of the Directive, it came into force on
25 June 2009.
5. Deadline for implementing the Directive into the Polish legal system
Pursuant to Article 4 (1), Member States were obliged to
transpose the Directive by 31 December 2010 at the latest.
6. Fatty acid methyl ester.
7. Methylcyclopentadienyl manganese tricarbonyl.
8. See the judgement of the Court of Justice of the European Union of 8 July 2010, case number: C-343/09 (published in Official Journal C series from 28th
August 2010, p. 14-15), confirming the validity of the questioned regulation that considerably limits the= content of metallic additives.
80
6. Transposition to domestic law
The Fuel Directive has not been fully transposed9. In fact
only a few measures have been transposed to national
legislation. These gaps in transposition relate to the most
significant provisions. As a result the following issues have
not been regulated:
● the mechanism to monitor and reduce GHG emissions
from fuel and electricity consumption by vehicles;
● environmental specifications for fuels (except for diesel);
● reduction of metallic additive content in fuels;
● the fulfilment of sustainability criteria by blended biofuels.
It should be noted that the lack of a full transposition of
the RES Directive in the area of transport has an impact
on the improper transposition of the Fuel Directive. This
renders an assessment of the transposition of the latter even more problematic. The provisions of the Fuel
Directive on the sustainability criteria for biofuels are not
binding. They constitute empty norms – the sustainability
criteria have not been introduced into Polish legislation
due to the lack of a full transposition of the RES Directive
into the area of transport.
The only provision that has been transposed, albeit to
a certain extent improperly, refers to diesel, in particular to
the FAME content. Its maximum level should not exceed
7%. However, the Directive entitles Member States to
allow the sale of diesel oil with a higher FAME content. Poland was obliged to transpose the Directive by 31 December 2010. The Act of 27 May 2011 amending the act on the
fuel quality monitoring and control system and other acts
(Dz. U. No 152, item 902; No 234, item 1392) came into
force on 10 August 2011. It defines a liquid fuel as a diesel
oil with the maximum FAME content of 7%. Nevertheless,
the specification for diesel was properly transposed only
with the Regulation of the Minister of Economy of 2 February 2012 amending the regulation on the quality requirements for liquid fuels (Dz. U. No 0, item 136), which came
into force on 15 February 2012.
7. Implementation
The lack of the Directive’s full transposition translates into
the lack of its implementation in the Polish legal system.
One of the provisions of the Fuel Directive was implemented even before the Directive was adopted. The
acceptable level for sulphur content in liquid fuels was
defined (at 10g/kg) in Annexes I and II to the Regulation
of the Minister of Economy of 9 December 2008 on quality
requirements for liquid fuels (Dz. U. No 221, item 1441),
which came into force on January 2009.
objective
It is possible to define four objectives that should be fulfilled
by the implementation of the Fuel Directive:
1) levels of air quality that do not give rise to significant
negative impacts on human health and the environment – this is the main objective and the following three
contribute to its fulfilment:
2) the monitoring and reduction of GHG emissions during
the fuel lifecycle;
3) the decarbonisation of transport fuels through their
proper specification;
4) the meeting of sustainability criteria for biofuels.
Only one of the above four objectives has been partially
achieved – the specifications of fuels. During the two and a
half years after the deadline for transposing the Directive,
none of the remaining three objectives was met. Due to
the lack of such a transposition, it is impossible to monitor
GHG emissions during the fuel lifecycle, which in turn impedes their reduction. As the provisions on the sustainability criteria have not been defined, it is impossible to verify
whether biofuels and biocomponents blended in Poland
meet these criteria. Fuel specification, which is aimed at
promoting decarbonisation, has only been introduced for
diesel.
The failure to fulfil these objectives directly translates
into problems with meeting the main objective, i.e. improving air quality standards in Poland.
The European Commission is not conducting any procedure against Poland with respect to the Fuel Directive.
9. The Directive was to be transposed by the bill prepared by the Ministry of Economy, amending the act on the fuel quality monitoring and control system and
other acts. However, the act has not been adopted. The draft is available on: http://legislacja.rcl.gov.pl/lista/2/projekt/55354
81
Dyrektywa
wambient
sprawie
Directive on
czystszego
powietrza
air quality
and cleaner
air
dla Europy
for
Europe (CAFE)
Małgorzata Smolak
82
the Council of 21 May 2008 on ambient air quality and
cleaner air for Europe1 constitutes the main legal tool
at the Community level dealing with air pollution. The
CAFE Directive amends provisions on air quality so as
to reduce pollution to levels that pose a minimal threat
to human health and the environment as a whole and to
ensure that the public are better informed about possible
impacts.
The CAFE Directive repeals and amends five binding
legal acts:
1. Council Directive 96/62/EC of 27 September 1996 on
ambient air quality assessment and management;
2. Council Directive 1999/30/EC of 22 April 1999 Relating to limit values for sulphur dioxide, nitrogen dioxide
and oxides of nitrogen, particulate matter and lead in
ambient air;
3. Directive 2000/69/EC of the European Parliament and
of the Council of 16 November 2000 relating to limit
values for benzene and carbon monoxide in ambient
air;
4. Directive 2002/3/EC of the European Parliament and
of the Council of 12 February 2002 relating to ozone in
ambient air;
5. Council Decision of 27 January 1997 establishing
a reciprocal exchange of information and data from
networks and individual stations measuring ambient air
pollution within the Member States (97/101/EC).
The purpose of these changes is to incorporate the latest
health and scientific developments and the experiences
of the Member States. They also aim at ensuring transparency, clarity and administrative efficiency.
Directive 2004/107/EC of the European Parliament
and of the Council of 15 December 2004 relating to arsenic, cadmium, mercury, nickel and polycyclic aromatic
hydrocarbons in ambient air is not covered in the scope
of the CAFE Directive. Decisions on this subject matter
will be made once sufficient experience has been gained
in relation to the implementation of this directive.
The main objectives of the CAFE Directive are laid
down in Article 1 and include:
1) defining objectives for ambient air quality designed
to avoid, prevent or reduce harmful effects on human
health and the environment as a whole;
2) assessing the ambient air quality in Member States on
the basis of common methods and criteria;
3) obtaining information on ambient air quality in order to
help combat air pollution and nuisance and to monitor long-term trends and improvements resulting from
national and Community measures;
4) ensuring that such information on ambient air quality is
made available to the public;
5) maintaining air quality where it is good and improving
it in other cases;
6) promoting increased cooperation between the Member
States in reducing air pollution.
2. The main provisions of the Directive
The main change to the already binding legislation is the
introduction of air quality norms for PM 2.5. With respect
to benzene, nitrogen dioxide, nitrogen monoxide, sulphur
dioxide, lead, PM10, carbon monoxide and ozone, the
CAFE Directive maintains the norms that are specified in
the aforementioned directives.
Apart from the already binding limit values (which
stand for a level fixed on the basis of scientific knowledge, with the aim of avoiding, preventing or reducing
harmful effects on human health and/or the environment
as a whole, to be attained within a given period and
not to be exceeded once attained), the CAFE Directive
introduces the terms of a target value (i.e. a level fixed
with the aim of avoiding, preventing or reducing harmful effects on human health and/or the environment as a
Deadlinetranspozycji
Termin
for transposition
Dyrektywy
minął
of
the Directive
11.VI.2010.
passed
Transponowana
on
11.VI.2010. Directive
z opóźnieniem
transposed
partly
i fragmentarycznie.
and
with a delay.
21 May 2008 on ambient air quality and cleaner air for Europe (OJ L 152,
11.06.2008, p. 1) (hereinafter The CAFE Directive).
83
whole, to be attained where possible over a given period)
and a long-term objective (i.e. a level to be attained in the
long term, save where not achievable through proportionate measures, with the aim of providing effective protection to human health and the environment).
The Directive defines limit values and the time in
which they should be attained for sulphur dioxide, nitrogen dioxide, benzene, carbon monoxide, lead, PM10
and PM 2.5. Moreover, target values are provided for
ozone and PM2.5, while a long-term objective is given for
ozone. For atmospheric concentrations of sulphur dioxide
and nitrogen dioxide the Directive defines alert thresholds, while for PM2.5 it sets a national exposure reduction target.
Article 22 of the Directive introduces the possibility
of postponing the attainment of deadlines and specifies exemptions from the obligation to apply certain limit
values – three years for PM10 and five years for nitrogen
monoxide and benzene. These decisions are made on
the basis of the conditions specified by the European
Commission and an assessment conducted by this body.
Where, in a given zone or agglomeration, conformity with
the limit values for nitrogen dioxide or benzene cannot be
achieved within the deadlines, a Member State may postpone those deadlines by a maximum of five years, i.e. to
the end of 2014, for that particular zone or agglomeration, on condition that an air quality plan is established.
Where, in a given zone or agglomeration, conformity
with the limit values for PM10 cannot be achieved because of site-specific dispersion characteristics, adverse
climatic conditions or transboundary contributions, a
Member State is exempt from the obligation to apply those
limit values until 11 June 2011 provided that an air quality
plan is established and that the Member State shows that
all appropriate measures have been taken at the national,
regional and local levels to meet the deadlines.
The CAFE Directive also introduces new mechanisms
for air quality management in zones and agglomerations. It obliges Member States to designate competent
authorities and bodies responsible for the following: the
assessment of ambient air quality; the approval of measurement systems (methods, equipment, networks and
laboratories); ensuring the accuracy of measurements;
the analysis of assessment methods; the coordination
on their territory of Community-wide quality assurance
programmes which are organised by the Commission;
cooperation with the other Member States and the Commission and designation of zones and agglomerations
throughout their territory. The CAFE Directive defines
the system for air quality assessment (based on fixed
measurements, modelling techniques and indicative
measurements as well as criteria for the distribution and
the number of measurement points).
Pursuant to Article 13 (1) of the CAFE Directive,
Member States have to ensure that, throughout their
zones and agglomerations the limit values that are
specified in the Directive are not exceeded. Where, in
given zones or agglomerations, the levels of pollutants in
ambient air exceed any limit value or target value, plus
any relevant margin of tolerance in each case, Member
States have to ensure that air quality plans are established for those zones and agglomerations in order to
achieve the related limit value or target value (Article 23).
Air quality plans should set out appropriate measures, so
that the period when limit values are exceeded can be
kept as short as possible.
Moreover, where, in a given zone or agglomeration,
there is a risk that the levels of pollutants will exceed one
or more of the alert thresholds, Member States should
draw up action plans indicating the measures to be taken
in the short term in order to reduce the risk or duration of
such an exceedance (Article 24). Where any alert threshold, limit value or target value plus any relevant margin
of tolerance or long-term objective is exceeded due to
significant trans-boundary transport of air pollutants or
their precursors, the Member States concerned have to
cooperate and, where appropriate, draw up joint activities in order to remove such exceedances through the
application of appropriate but proportionate measures.
The CAFE Directive obliges Member States to inform
the public and relevant organisations about ambient air
quality, postponement decisions and exemptions from the
obligation to attain limit values as well as air quality programmes. Moreover, Member States have to make available to the public annual reports for all pollutants covered
by the CAFE Directive (Article 26). Member States are
also obliged to ensure that information on ambient air
quality is made available to the Commission within the
required timescale (Article 27).
The Directive came into force on the day when it was
published in the Official Journal of the European Union,
i.e. 11 June 2008.
4. Deadline for transposing
the Directive
Member States were obliged to bring into force the laws,
regulations and administrative provisions necessary to comply with the CAFE Directive before 11 June 2010. Moreover,
84
Member States had to ensure that a sufficient number of
urban background measurement stations of PM2.5 necessary for the calculation of the average exposure indicator is
established at the latest by 1 January 2009.
5. Transposition
The Act of 13 April 2012 amending the Act on Environmental Protection Law and other acts came into force
as late as 28 May 20122. In footnote 1 it states that
“to the extent of its regulations, it implements Directive 2008/50/EC of the European Parliament and of
cleaner air for Europe (OJ L 152, 11.06.2008, p. 1)”.
This wording suggests that, albeit with nearly a twoyear-long delay, the CAFE Directive was fully transposed into Polish legislation by the Act of 28 May 2012.
However, this is not the case.
First, the relevant regulations came into force later, namely:
1) The Regulation of the Minister of the Environment of
24 August 2012 on the levels of selected substances
in ambient air (Dz. U. of 2012, item 1031) came into
force on 15 October 2012;
13 September 2012 on the assessment of the concentration of substances in ambient air (Dz. U. of 2012,
item 1032) came into force on 3 October 2012;
2 August 2012 on the zones in which air quality is assessed (Dz. U. of 2012, item 914) came into force on
25 August 2012;
11 September 2012 on air protection programmes and
short-term action plans (Dz. U. of 2012, item 1028)
came into force on 3 October 2012;
10 September 2012 on the scope and manner of provision of information on air pollution (Dz. U. of 2012,
item 1034) came into force on 3 October 2012;
13 September 2012 on the calculation of average exposure indicators and the verification of the fulfilment
of the exposure concentration obligation (Dz. U. of
2012, item 1029) came into force on 3 October 2012;
14 August 2012 on the national exposure reduction
target (Dz. U. of 2012, item 1030) came into force on 3
October 2012.
The new legal measures that implement the CAFE Directive into Polish legislation provide for the following:
● the introduction of definitions for: national exposure
reduction target, national average exposure indicator,
urban background locations, target value, information
threshold, exposure concentration obligation, environmental quality norm, average exposure indicator
for agglomerations and for cities in excess of 100,000
inhabitants, contribution from natural sources;
● the specification of principles with regard to PM2.5:
air quality assessment, calculation of indications,
verification of the fulfilment of the exposure concentration obligation and the national exposure reduction
2. The Act of 13 April 2012 amending the Act on the Environmental Protection Law and other acts (Dz.U. of 2012, item 460, hereinafter referred to as the Act
of 28 May 2012).
85
target, introduction of a new air quality norm for PM2.5
concentrations by means of target and limit values,
establishment of a measurement network for PM2.5,
development and operation of the air quality monitoring
and assessment system with regard to PM2.5 as well
as a short term forecast system;
● new definitions of zones where air quality is to be assessed and the division of the country into new zones
(their number was reduced from 170 to 46);
● the introduction of new principles and requirements for
air protection programmes and short term action plans;
● the introduction of a “derogation” measure, which allows the postponement of the deadline for limit values
with regard to nitrogen dioxide and benzene, following
a positive decision from the European Commission in
this respect.
It should, however, be noted that the transposition of the
CAFE Directive contains significant flaws. In Article 23
(1), the second sentence of the CAFE Directive, stating
that “in the event of exceedances of those limit values
for which the attainment deadline has already expired,
the air quality plans shall set out appropriate measures,
so that the exceedance period can be kept as short as
possible.” should be regarded as improperly transposed
into Polish legislation. The national provisions on air protection programmes do not require these documents to
ensure that the period in which limit values are exceeded
is reduced to the minimum.
The Regulation of the Minister of the Environment on
air protection programmes and short term action plans
states that air protection programmes have to comply
with “a schedule of measures and expenses, including
respective medium term measures, drawn up for a period
of no longer than five years, and long term measures,
for a period of no longer than ten years,” which clearly
counters the purpose of Article 23 of the CAFE Directive. Moreover, the amendments to the Act on Environmental Protection Law, introduced by the Act of 28 May
2012, stipulate that with respect to the zones for which
86
air protection programmes have been adopted and
where air quality norms have been exceeded, the Board
of the Voivodship is obliged to prepare a review of the
programme within three years of the day on which the
resolution of the Voividship Parliament on the air protection programme was adopted. The three-year-long period
during which air quality norms are exceeded clearly will
not ensure that the period with exceedances is as short
as possible.
Secondly, Article 30 of the CAFE Directive obliges
Member States to lay down the rules on penalties
applicable to infringements of the national provisions
adopted pursuant to the Directive and take all measures
necessary to ensure that they are implemented. The
penalties provided for must be effective, proportionate
and dissuasive. The Act of 28 May 2012 introduces to
the Act of 27 April 2001 a chapter on financial penalties
for infringements in the preparation and implementation of air protection programmes and short term action
plans. Pursuant to Article 315a, the body guilty of the
infringement may be fined with a penalty of PLN 10,000 –
500,000 when:
1) it fails to implement control requirements with respect
to the deadlines for the adoption of the air protection
programmes and short term action plans,
2) it fails to comply with the statutory deadline for the
adoption of the air protection programmes and short
term action plans,
3) it fails to comply with the deadlines for the implementation of the measures specified in the air protection
programmes and short term action plans.
Therefore, this provision refers only to the preparation of
air protection programmes and short-term action plans.
No measures provide for penalties with respect to the
implementation of the aforementioned programmes and
plans. The lack of a system of penalties and other measures that ensure the implementation of air protection
programmes and short-term action plans constitutes a
significant flaw in the transposition of the CAFE Directive. As a consequence, the Directive has not been fully
transposed, and its objectives are jeopardised.
6. Implementation
Due to the delayed and faulty transposition of the
provisions of the CAFE Directive on air protection programmes, this legal act cannot be fully implemented.
Despite the fact that the air protection programmes and
short term action plans, which contain information and
measures specified in the Directive, should come into
force by 11 June 2010, plans that are prepared according
to the old rules are still binding in Poland (as of September 2013). Pursuant to the schedule, defined in Article 91
of the Act on Environmental Protection Law, the air protection programmes have to be adopted within 18 months
of the day on which the voivodship environmental protection inspector submits the results of the assessment of
pollutant concentrations in ambient air and information
with regard to the classification of zones.
The inspector is obliged to assess pollutant concentrations in ambient air in respective zones for a particular
year by 30 April the following year. Pursuant to the Act
of 28 May 2012, new air protection programmes will be
therefore adopted as late as November 2013. As these
programmes are being prepared, it is impossible to assess
the implementation of the provisions referring to these
programmes. However, due to the faulty transposition of
Article 23 of the CAFE Directive, it may be assumed that
these programmes will not ensure that the period in which
the limit values are exceeded is minimised.
It is worth noting that despite the fact that Poland did
not transpose the CAFE Directive, on 30 October 2008,
the Polish government sent notifications to the European
Commission on the derogation from the obligation to
achieve limit values for PM10 for 83 zones within the
country (based on Article 22 (2) of the CAFE Directive).
Only four zones were granted the requested derogation
with respect to PM10. Next, the Polish government, on 2
September 2010 and on 30 September 2010, sent notifications on the exclusion of deadlines for the PM10 limit
values in zones located in the Śląskie and Małopolskie
Voivodships and notifications on the postponement of
deadlines for NO2 limit values in one zone of the Mazowieckie Voividship. The European Commission voiced its
reservations with regard to the notifications submitted by
the Republic of Poland.3
objectives
The main objective of the CAFE Directive, i.e. the prevention and reduction of the negative impact of air pollution on human health and the environment as a whole,
has not been achieved in Poland. This results from the
delayed and partially flawed transposition of the CAFE
Directive into Polish legislation and its subsequent delayed implementation. Obligations resulting from Article
13 of the CAFE Directive, which should ensure that limit
values are not exceeded for respective pollutants, constitute the main area of infringement.
An assessment prepared for 2011 shows that admissible concentrations were exceeded in each zone for at
least one pollutant. As a result, zones were classified as
class C with respect to this pollutant. In class C zones
it is required to conduct measures that are aimed at attaining limit or target values for atmospheric pollutants
(e.g. within air protection programmes). These measures
should be carried out for areas and substances with
respect to which the threshold values were exceeded.
A large number of zones was classified as C with
respect to PM10. In 2011 as many as 42 zones out of 46
were categorised as class C (around 91%). In each of
these zones limit values for daily concentrations of PM10
were exceeded. In some of them (55%) the average annual limit values were exceeded as well. A large number
of zones were classified as C with respect to PM2.5. This
substance was taken into consideration in the air quality
assessment in Poland for the second time.
Threshold values that categorise zones as class C
(the limit value augmented by the tolerance margin) were
exceeded in 21 zones (around 46% of all zones). Six
zones were categorised as class B. The total number
of zones in class B and C (i.e. where limit values were
exceeded) was similar as in the assessment for 2010.
The results of the final assessment for 2011, based on
the criteria aimed at health protection, are similar to the
results of the final air quality assessment for 2010, which
was conducted for the same division into zones.4
In 2012,
the daily
limit value
Stworzenie
warunków
fordla
PM10
has beenzatrudexceeded
zwiększenia
nienia i in
rozwoju
regionalin Poland
38 of the
46
nego, zwłaszcza na obareas,
and the annual value
szarach
in 18 areas.
On 31 January 2012 the European Commission filed a
complaint to the Court of Justice of the European Union,
where it accused Poland of failing to transpose into
national legislation and bring into force all the necessary provisions required by the CAFE Directive. At the
same time the European Commission filed a motion to
impose a temporary financial penalty on Poland of EUR
71,521.38 a day.5 As Poland informed the European
Commission that the Directive had been transposed, the
Commission withdrew the complaint in case C-48/12. As
a result, on 8 January 2013, the President of the Court
ordered that the case be removed from the register.
Moreover, the European Commission decided to
institute infringement proceedings with regard to the
zones where limit values for PM10 were exceeded and
for which derogations were not granted due to the Commission’s reservations with respect to the notifications
submitted by Poland. The proceedings were initiated
on the basis of Article 258 or 260 of the Treaty on the
Functioning of the European Union (former Article 226
and 228 of the TEC) and are in progress (infringement
No 2008/2199).6
3. http://powietrze.gios.gov.pl/gios/site/content/derogations_postponement
4. Ocena jakości powietrza w strefach w Polsce za rok 2011, http://powietrze.gios.gov.pl/gios/site/air/quality/type/R?year=12
5. European Commission v Republic of Poland, case C-48/12, 2012/C
80/19. OJ C 80/12, 17.03. 2012. Available at: http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:C:2012:080:0012:0013:PL:PDF.
6. http://powietrze.gios.gov.pl/gios/site/content/derogations_postponement
87
Dyrektywa
w sprawie
Directive
on
1
emisjii
przemysłowych
industrial emissions
Marcin Stoczkiewicz
88
1. The Objective of the Directive
The Directive of the European Parliament and of the
Council 2010/75/EU of November 24, 2010 on industrial
emissions, hereinafter referred to as “Directive 2010/75/
EU” is a legal act integrating and modifying seven other
directives, in particular Directive 2008/1/EC (concerning
integrated pollution prevention and control)2 and Directive
2001/80/EC (on the limitation of emissions of certain pollutants into the air from large combustion plants)3.
The most general objectives of Directive 2010/75/EU
are determined in section 44 where ensuring a high level
of environmental protection and the improvement of environmental quality is listed, which constitutes a reference to
Art. 191 of the Treaty on the Functioning of the European
Union. Section (2) of Directive 2010/75/EU indicates that
the objective of this legal act is to prevent pollution which
results from industrial activities, its reduction and, as far
as possible, elimination in line with the “polluter pays” principles and the principle of pollution prevention. According
to section (3) of Directive 2010/75/EU, in order to obtain
the above-stipulated objective, each installation should be
operated only when it has a relevant permit; according to
section (12), the conditions of the permit should rely on the
best available techniques.
Art. 1 of Directive 2010/75/EU stipulates that the
directive lays down rules on the integrated prevention and
control of pollution arising from industrial activities. The
general objectives of Directive 2010/75/EU are to be met
via integrated prevention and control of pollution; prevention and control consist in permitting the operation of only
those installations which, thanks to the application of best
available practices, comply with the volume of emissions
laid down in the directive.
Deadlinetranspozycji
Termin
for transposition
Dyrektywy
minął 7.I.2013.
passed
on 7.I.2013.
Nietransposition.
No
została transponowana.
The scope of application of Directive 2010/75/EU is
very broad; it is determined in Art. 2 by the indication of
types of industrial activities which cause pollution indicated
in its Schedules II – IV. The key provision is contained in
Art. 4.1, the first paragraph of Directive 2010/75/EU, in
line with which the Member States shall take the necessary measures to ensure that no installation or combustion
plant, waste incineration plant or waste co-incineration
plant is operated without a permit. The Member States
shall grant permits if the installation complies with the
requirements of Directive 2010/75/EU (Art. 5.1) and shall
take the necessary measures to ensure that the permit
conditions are complied with (Art. 8.1). The last obligation encompasses, in particular, a sanction of suspension
of the operation of an installation where the conditions
of a permit are breached, posing immediate danger to
human health or threaten to cause an immediate sig-
2. Main Provisions of Directive
2010/75/EU
On account of the limited scope of this study, only the
most important elements of the regulations regarding
integrated pollution prevention and control in the European
Union introduced by Directive 2010/75/EU are discussed
in this study.
The directive is extremely important for the implementation of the European Union’s environmental policy
within the scope of energy. As indicated in section 29
large combustion plants contribute greatly to emissions of
polluting substances into the air resulting in a significant
impact on human health and the environment, therefore “it
is necessary to set more stringent emission limit values at
the Union level for certain categories of combustion plants
and pollutants.” Directive 2010/75/EU significantly tightens
the emission standards of SO2, NOx and dusts and
introduces an obligation of ongoing measurement of the
concentration of such pollution for power sources greater
than 100 MWt and an obligation of the measurement of
the total emission of mercury in coal-fuelled sources.
1. Directive of the European Parliament and of the Council 2010/75/EU of
November 24, 2010 on the industrial emissions (integrated pollution prevention and control) (transformed version) Official Journal of the EU L 334
of December 17, 2010 p.
2. Directive of the European Parliament and of the Council 2008/1/EC of January 15, 2008 concerning integrated pollution prevention and control, Official Journal L 24 of 29.1.2008, p.
3. Directive of the European Parliament and of the Council 2001/80/EC of
October 23, 2001 on the limitation of emissions of certain pollutants into
the air from large combustion plants Official Journal L 309 of 27.11.2001,
p. 1.
89
nificant adverse effect upon the environment (Art. 8.2,
second paragraph). Emissions of greenhouse gases,
encompassed by the scope of the application of Directive
2003/87/EC are in principle excluded from the scope of
conditions determined in the permit (Art. 9.1), yet through
the tightening of emission standards for fuel combustion
facilities, Directive 2010/75/EU indirectly contributes to
the implementation of the climate policy of the European
Union. Industrial installations encompassed by the scope
of Directive 2010/75/EU have to comply with very strict
environmental protection standards; the Member States
have to ensure that such installations do not cause any
significant pollution and the best available techniques
(BATs) are applied. Directive 2010/75/EU has significantly
extended the provisions regarding BATs, including the
introduction of an obligation of including BATs as references to determine permit conditions (Art. 14.3). Permissible emission values rely on the best available practices
and a competent authority determines that permissible
emission values ensuring emission levels related to best
available techniques determined in decisions concerning
conclusions related to BATs are not exceeded (Art. 15.2
and 15.3). The procedure for issuing permits takes into
account access to information, the participation of society
in the decision-making process, access for the interested
community (including non-governmental organizations) to
the judiciary, as well as an evaluation of trans-boundary
effects (Art. 24 – 26).
Chapter III of Directive 2010/75/EU contains detailed
provisions regarding combustion facilities with power
exceeding 50 MW, irrespective of the fuel used. Art. 30.2
of Directive 2010/75/EU constitutes a general obligation of
compliance with permissible emission values by combustion facilities. Emission Limit Values were determined in
detail in parts 1 and 2 of extensive Schedule V to Directive 2010/75/EU. In line with Directive 2010/75/EU, both
existing and new combustion facilities should comply with
tightened emission standards as of January 1, 2016. In the
case of the latter, the emission standards are particularly
restrictive.
The EU legislator has foreseen four ways of meeting
such standards on the part of large combustion plants.
The first option consists in the adjustment of emission
from such sources to permissible emission standards by
January 1, 2016 (Art. 30.2 second paragraph of Directive
2010/75/EU). The second option consists in making use of
the mechanism of gradual reduction of emission between
2016 and 2020 by including the installation in the Transitional National Plan (TNP) which may only include “older”
combustion facilities, i.e. facilities which were granted their
first permit before November 27, 2002 and which were
commissioned not later than on November 27, 2003 (Art.
32 of Directive 2010/75/EU). The third option consists
in exempting combustion plants from compliance with a
permissible emission volume between January 1, 2016
and December 31, 2023 on the condition of limiting the
operation of the plant to a maximum of 17,500 hours (Art.
33 of Directive 2010/75/EU). The fourth option consists
in turning off, as of January 1, 2016, combustion plants
which are not included in the TNP and do not comply with
permissible emission standards on that date. The aboveindicated general options are secured by very detailed
conditions and many exceptions are foreseen with respect
to the principles above.
3. Date of Entry into Force of Directive
2010/75/EU
Pursuant to Art. 83 of Directive 2010/75, it entered into
force on January 6, 2011.
4. Deadline for Transposition of Directive 2010/75/EU to National Law
In line with Art. 80.1 first sentence of Directive 2010/75/
EU, the Member States were required to introduce the
statutory provisions, as well as the executive and administrative provisions indispensable for the performance of
a definite majority of the provisions of this Directive by
January 7, 2013. In line with Art. 80.1 second sentence,
the application of such provisions should take place by the
same deadline. Art. 82 of Directive 2010/75/EC contains
a very extensive determination of transitional provisions
which determine different (extended) deadlines for the application (but not transposition) of its detailed provisions in
reference to individual categories of installations.
90
5. Transposition
Directive 2010/75/EU had not been transposed into Polish
law by January 7, 2013 and this status persisted until the
date of completion of the work on this study (September
14, 2013). On the Internet sites of the Ministry of the
Environment, a draft act on the amendment of the Environmental Protection Law and certain other laws was published (draft 2012-07-27), which, according to reference 1)
of the amended Environmental Protection Law is supposed to constitute the transposition of Directive 2010/75/
UE into Polish law.4 An analysis of this draft significantly
exceeds the frame of this study.
6. Implementation
In relation to the absence of a timely transposition of Directive 2010/75/EU into Polish law, in principle there is no
implementation into the Polish legal arena.
However, making use of the facultative derogation
determined in Art. 32 of Directive 2010/75/EU, the Council
of Ministers adopted a draft Transitional National Plan by
means of resolution No. 212/2012 on December 27, 2012.
The Ministry of the Environment submitted the draft TNP to
the European Commission within the deadline stipulated in
Art. 32.5, i.e. by December 31, 20125. In line with Art. 32.5
of Directive 2010/75/EU, the European Commission has
12 months to indicate reservations and approve the plan or
reject it. The evaluation of the draft TNP takes into account
the provisions of the Directive discussed and the Executive
Decision of the Commission of February 10, 2012 establishing provisions regarding transitional national plans, referred
to in the directive of the European Parliament and of the
Council 2010/75/EU on industrial emissions6.
The draft TNP was published at the Internet site of
the Ministry of the Environment7. The combustion plants
included in the TNP will not have to comply, between 2016
and 2023, with standards determined in Schedule V.I of
Directive 2010.75/EU. Such installations shall have to
comply with emission standards determined in the permit
for installations which shall be applicable on December
31, 2015 and additionally comply with annual maximum
emission thresholds determined in the TNP. The draft TNP
includes, in total, 75 combustion plants. The European
Commission has not yet issued (by September 2013) a
decision on the draft TNP.
7. The Implementation of the Objective
of Directive 2010/75/EU
The objective of Directive 2010/75/EU consisting in the
improvement of the quality of the environment via a
significant reduction in industrial pollution is to be met
via integrated prevention and control of pollution; this
consists in allowing only those installations which comply
with permissible emission values to operate. The implementation of the objective of Directive 2010/75/EU is
significantly threatened on account of the absence of its
timely transposition and implementation. The objective of
the directive will be particularly difficult to meet in the case
of energy installations. As indicated by Blumberg New Energy Finance, combustion facilities which exist in Poland
with a total power of 33 GW do not comply with emission
standards of Directive 2010/75/EU8.
8. Proceedings Initiated
On account of the absence of a transposition of Directive
2010/75/EU into domestic law, the European Commission
commenced the procedure determined in Art. 258 of the
Treaty on the Functioning of the European Union9.
4. http://ippc.mos.gov.pl/ippc/custom/Ustawa_mr.pdf
5. http://www.mos.gov.pl/artykul/4903_ppk/19838_informacja_na_temat_podjecia_uchwaly_rady_ministrow_212_2012_w_sprawie_przyjecia_projektu_przejsciowego_planu_krajowego.html
6. Executive Decision of the Commission of February 10, 2012 establishing provisions regarding transitional national plans referred to in Directive of the European Parliament and of the Council 2010/75/EU on industrial emissions, Official Journal EU L 52 of February 24, 2012, p. 13. http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2012:052:0012:0025:PL:PDF
7. http://www.mos.gov.pl/g2/big/2012_11/d84e3819d24702d732f1c4fc7419bc50.pdf
8. Blumberg New Energy Finance, European Power Research Note, Industrial Emissions Directive. 18 October 2012, p. 1 and 7.
9. http://ec.europa.eu/environment/air/pollutants/stationary/ied/transposition.htm
91
Directive
on environmental
impact assessment
92
1. Full name of the Directive
Directive 2011/92/EU of the European Parliament and of
the Council of 13 December 2011 on the assessment of
the effects of certain public and private projects on the environment (OJ L 26, 28.01.2012, p. 1) (hereinafter referred
to as The EIA Directive or The Directive).
Directive transposed
Dyrektywa
pomimo
uchybień
correctly. transponowana
prawidłowo.
\The purpose of the Directive is to lay down general principles for the assessment of environmental effects, with
a view to supplementing and coordinating development
consent procedures governing public and private projects
which are likely to have a major effect on the environment. The Directive should also ensure that development
consents for public and private projects which are likely
to have significant effects on the environment should be
granted only after an assessment of the likely significant
environmental effects of those projects has been carried
out.
Considering the purpose of the Directive, Article 1 defines
the scope of this legal act. It states that the Directive applies to the assessment of the environmental effects of
those public and private projects that are likely to have
significant effects on the environment.
In Article 2, the Directive imposes on Member States
the obligation to adopt all measures necessary to ensure
that, before a consent is given, projects likely to have
significant effects on the environment by virtue, inter alia,
of their nature, size or location are made subject to a
requirement for development consent and an assessment
with regard to their effects.
Pursuant to Article 3, the environmental impact assessment (EIA) has to identify, describe and assess in an
appropriate manner, in the light of each individual case
and in accordance with the principles laid down in the
Directive, the direct and indirect effects of a project on the
following factors:
a) human beings, fauna and flora;
b) soil, water, air, climate and the landscape;
c) material assets and the cultural heritage;
d) the interaction between the factors referred to in points
(a), (b) and (c).
In Article 4, the Directive specifies two types of projects:
(i) those for which an environmental impact assessment,
based on the principles laid down in the Directive, is
always conducted (enumerated in Annex I to the Directive)
and (ii) those for which such an assessment is conducted
only when certain conditions are met (enumerated in Annex II to the Directive). As far as projects from Annex II are
concerned, Member States decide whether they should be
assessed in accordance with the principles stipulated in
the Directive. They determine it through:
a) case-by-case determination or
b) thresholds or criteria set by the Member State.
Member States may decide to apply both procedures
referred to in points (a) and (b).
The relevant selection criteria set out in Annex III
should be taken into account when a case-by-case examination is carried out or thresholds or criteria are set for the
aforementioned purpose.
In the case of projects which, pursuant to Article 4,
are to undergo an environmental impact assessment in
accordance with the Directive, Member States are obliged
to adopt necessary measures to ensure that the developer
supplies, in an appropriate form, the information specified
in Annex IV inasmuch as:
a) the Member States consider that the information is
relevant to a given stage of the consent procedure and
to the specific characteristics of a particular project or
type of project and of the environmental features likely
to be affected;
b) the Member States consider that a developer may reasonably be required to compile this information having
regard, inter alia, to current knowledge and methods of
assessment.\
Member States are obliged to take the necessary measures to ensure that, if the developer so requests before
submitting an application for a development consent, the
competent authority should give an opinion on the information to be supplied by the developer.
The Directive specifies the minimum scope of information that has to be provided by the developer. It includes
among other things: (i) a description of the project,
comprising information on the site, design and size of the
project; (ii) a description of the measures envisaged in
order to avoid, reduce and, if possible, remedy any significant adverse effects; (iii) the data required to identify and
assess the main effects which the project is likely to have
on the environment; (iv) an outline of the main alternatives
studied by the developer and an indication of the main
reasons for his choice, taking into account the environmental effects.
Article 6 of the Directive stipulates that Member States
are also obliged to designate the authorities to be consulted, either in general terms or on a case-by-case basis.
They also have to take the measures necessary to ensure
that these bodies are given an opportunity to express their
opinion on the information supplied by the developer and
on the request for a development consent.
93
The Directive attaches significant importance to the
proper provision of information to the public1 and the public
concerned2 about projects that fall under the environmental impact assessment procedure. To this end, the Directive obliges Member States to inform the public, whether
by public notices or by other appropriate means, such
as electronic media where available, about the following
matters in the environmental decision-making procedures
referred to in Article 2(2) of the Directive3, at the latest,
as soon as information can reasonably be provided: (i)
the request for development consent; (ii) the fact that the
project is subject to an environmental impact assessment
procedure and, where relevant, the fact that Article 7 of
the Directive applies; (iii) details of the competent authorities responsible for taking the decision, those from which
relevant information can be obtained, those to which
comments or questions can be submitted, and details of
the time schedule for transmitting comments or questions;
(iv) the nature of possible decisions or, where there is one,
the draft decision; (v) an indication of the availability of the
information gathered pursuant to Article 5 of the Directive; (vi) an indication of the times and places at which,
and the means by which, the relevant information will be
made available; (vii) details of the arrangements for public
participation.
Member States have to ensure that among other
things the following information is made available to the
public concerned within a reasonable timeframe: (i) a
description of the project comprising information on the
site, design and size of the project; (ii) a description of
the measures envisaged in order to avoid, reduce and, if
possible, remedy significant adverse effects; (iii) the data
required to identify and assess the main effects which the
project is likely to have on the environment; (iv) an outline
of the main alternatives studied by the developer and an
indication of the main reasons for his choice, taking into
account the environmental effects.
Ensuring the public concerned have an opportunity
to participate in consent procedures is treated with equal
importance. Article 6 (4) of the Directive stipulates that the
public concerned have to be given early and effective opportunities to participate in environmental decision-making
procedures and, for that purpose, are entitled to express
comments and opinions when all options are open to the
competent authority or authorities, before the decision on
the request for development consent is taken.
The Directive also takes account of projects that may
have a significant environmental impact that would occur
in other Member States than the country where the project
is implemented. Where a Member State is aware that a
project is likely to have significant effects on the environment in another Member State or where a Member State
likely to be significantly affected so requests, the Member
State in whose territory the project is intended to be carried out has to send to the affected Member State as soon
as possible and not later than when informing its own public, inter alia: (i) a description of the project, together with
any available information on its possible transboundary
impact; (ii) information on the nature of the decision which
may be taken.
Pursuant to Article 9, when a decision to grant or
refuse a development consent has been taken, the competent authority or authorities inform the public thereof in
accordance with the appropriate procedures and make
available to the public among other things the following
information:
a) the content of the decision and any conditions attached
thereto;
b) h
aving examined the concerns and opinions expressed
by the public concerned, the main reasons and considerations on which the decision is based, including
information about the public participation process.
The same information should be made available to other
Member States where the project may have significant
environmental impacts.
As far as non-governmental organisations (NGOs) are
concerned, Article 11 of the Directive is of key significance.
It obliges Member States to ensure that, in accordance
with the relevant national legal system, members of the
public concerned:
(a) having a sufficient interest, or alternatively;
(b) m
aintaining the impairment of a right, where the administrative procedural law of a Member State requires this
as a precondition;
have access to a review procedure before a court of law
1. Pursuant to Article 1 (2) (d) of the Directive, “public” means one or more natural or legal persons and, in accordance with national legislation or practice, their associations, organisations or groups.
2. Pursuant to Article 1 (2) (e) of the Directive, “public concerned” means the public affected or likely to be affected by, or having an interest in, the environmental decision-making procedures referred to in Article 2(2). For the purposes of this definition, non-governmental organisations promoting environmental protection and meeting any requirements under national law shall be deemed to have an interest.
3. Decisions issued within existing procedures for consent to projects in the Member States, or, failing this, within other procedures or within procedures to be
established to comply with the aims of the Directive.
94
or another independent and impartial body established by
law to challenge the substantive or procedural legality of
decisions, acts or omissions subject to the public participation provisions of this Directive.
What constitutes a sufficient interest and the impairment of a right is determined by the Member States, consistently with the objective of giving the public concerned
wide access to justice. To that end, the interest of any
non-governmental organisation meeting the requirements
referred to in Article 1(2) should be deemed sufficient.
Such organisations are also deemed to have rights capable of being impaired.
The Directive came into force on 17 February 2012.
5. Deadline for implementing the
Directive in the Polish legal system
The Directive does not specify any deadline for adopting national measures aimed at its implementation, as it
codifies existing legal solutions that have already been
implemented.
6. Transposition
In the context of the Directive’s transposition into national
legislation, it should be noted that this legal act attempts
to improve the uniformity of the EU provisions on environmental impact assessment of projects that are included
in the Council Directive 85/337/EEC of 27 June 1985 on
the assessment of the effects of certain public and private
projects on the environment. The latter was amended by:
(i) Council Directive 97/11/EC, (ii) Directive 2003/35/EC of
the European Parliament and of the Council and (iii) Directive 2009/31/EC of the European Parliament and of the
Council (OJ L 175, 5.07.1985, p. 40, as amended; Official
Journal of the European Union, Polish special edition,
chapter 15, v. 1, p. 248, as amended).
This is significant, as national provisions on environmental impact assessments were adopted when the
Directive 85/337/EEC was still binding. They are contained in the Act of 3 October 2008 on the provision of
information on the environment and its protection, public
participation in environmental matters and environmental
impact assessments (Dz. U. of 2008, No 199, item 1227,
as amended) (hereinafter referred to as The EIA Act). The
same holds true for regulations issued on the basis of
the EIA Act. Therefore, when assessing the current state
of the Directive’s transposition into Polish legislation it is
helpful to look at the circumstances in which these provisions were adopted.
The EIA Act was adopted for two main reasons. Firstly,
it constituted an attempt at facilitating the EIA process with
regard to projects that present a significant environmental
impact. Secondly, and this was clearly stressed in the justification for the act4, it provided a response to the reservations voiced by the European Commission in the case No
2006/2281, regarding the improper transposition of Directive 85/337/EEC. The charges referred among other things
to the following issues: (i) the manner of providing information to the public, its scope, the manner of providing
documentation to the public and solutions allowing for the
submission of comments and motions; (ii) the term “public
concerned” and (iii) the term “development consent”. Due
to these failures the measures related to the EIA proceedings did not remain in accordance with the Directive.
Considering the above, it may be concluded that the
current provisions of the EIA Act as well as regulations
issued on their basis should properly transpose Directive
2011/92/EC.
The EIA Act transposes the definitions provided for in
the Directive, including the terms: “development consent”
and “public concerned”, i.e. the terms about which the
European Commission expressed serious reservations. In
Polish legislation “development consent” refers to two decisions, i.e. a decision on the environmental requirements
for a consent to implement a project (hereinafter referred
to as a decision on environmental requirements) and a
final decision on a consent to initiate the implementation
of a project. Given that the Directive defines a “development consent” as “a decision of the competent authority
or authorities which entitles the developer to proceed with
the project,” the EIA Act rightly imposes an obligation to
conduct a separate EIA for each decision. One EIA should
be conducted during the procedure for issuing the decision
on environmental requirements.
The other one, if the relevant body deems it necessary
due to a lack of sufficient data during the first EIA, during
the procedure for issuing the decision that allows to initiate
the project (e.g. a building permit). However, it is worth
noting that although the EIA Act rightly requires that the
assessment be conducted on the respective stages of the
investment process, there still exist certain reservations
about its conformity with Article 2 (1) of the Directive5. Article 88 (1) of the EIA Act limits the possibility of a repeated
EIA to projects that are enumerated in Art 72 (1) (1, 10, 14
and 18) of the EIA Act. This may reduce Poland’s capabil-
4. Paper of the Parliament of 6th term, No 768, http://orka.sejm.gov.pl/Druki6ka.nsf/0/AA43EF8B99A49D1DC125748D003C8B61?OpenDocument
5. See: K. Gruszecki (Commentary on Article 88 of the EIA Act, System LEX OMEGA, state for 31.01.2013).
95
ity of taking all the necessary measures to ensure a proper
assessment of the environmental impacts resulting from
the implementation of a particular project.
National provisions on public participation in the EIA
procedure to a large extent follow the Directive. With a
few exceptions/ one exception, the EIA Act remains in
accordance with the Directive and ensures that the public
is informed in a timely and direct and direct manner
about a number of issues, including: the initiation of a
procedure for issuing a relevant decision, how the public
can become familiar with the necessary documents (this
also refers to the application for the decision and relevant
annexes), how and where comments and motions should
be submitted.
(One of )The abovementioned exception refers to
Article 85 (3) of the EIA Act. This provision defines the
obligation to inform the public about the decision, as well
as opportunities for becoming familiar with the decision
and the relevant documents. Pursuant to Article 9 of the
Directive, when a decision to grant or refuse a development consent has been taken, the competent authority or
authorities have to inform the public thereof in accordance
with the appropriate procedures and make available to the
public inter alia the content of the decision and any conditions attached thereto. Therefore, Article 85 (3) of the EIA
Act “is inconsistent with Article 9 of the Directive 2011/92/
EU, which creates an obligation to directly inform the public about the content of the decision.”6
Article 44 of the EIA Act properly implements the obligation specified in Article 11 of the Directive to ensure that
members of the public concerned who have a sufficient
interest or alternatively maintain the impairment of a right,
where the administrative procedural law of a Member
State requires this as a precondition, have access to a review procedure before a court of law or another independent and impartial body established by law to challenge
the substantive or procedural legality of decisions, acts or
omissions.
The EIA scope is defined in Article 62 of the EIA Act. It
transposes Article 3 of the Directive.
The Directive specifies two types of projects: (i) those
that always have a significant environmental impact and
for which an EIA is always required and (ii) those that
require such an assessment only when a Member State
decides so. Projects of the first type are enumerated in
Annex I to the Directive, while projects of the second
type in Annex II. Both annexes were transposed to Polish
legislation by means of the Regulation of the Council of
Ministers of 9 November 2010 on projects that may have a
significant environmental impact (Dz. U. of 2010, No 213,
item 1397, as amended). Selection criteria for projects of
the second type are included in Article 63 of the EIA Act,
which transposes Annex III of the Directive.
The requirements of the Directive on the EIA procedure itself are transposed mostly in Section V of the EIA
Directive. The Directive has been correctly transposed in
this area.
Section V, Chapter 2 of the EIA Act codifies the obligation of a Member State to ensure that a developer provides the information specified in Annex IV of the Directive
and that its scope is suitable. It also lays down provisions
that require Member States to ensure that, if the developer
so requests before submitting an application for a development consent, the competent authority should give an
opinion on the information to be supplied by the devel6. A. Haładyj, Podanie do publicznej wiadomości i obwieszczenie w przepisach prawa ochrony środowiska, Prawo i Środowisko, 2012, No 2, p. 79
96
oper. This part of the EIA Act contains provisions on an
environmental impact assessment report, provisions that
make it possible for the developer (the applicant) to submit
a project specification sheet together with an application
for the scoping of the EIA report as well as provisions that
oblige the authority that conducts the procedure to consult
the relevant bodies (including a regional environmental
protection director). This fulfils the obligations specified in
Article 5 of the Directive.
The EIA Act defines the bodies that should be consulted within the EIA procedure as well as the manner of such
consultations. This transposes Article 6 (1) of the Directive.
Section VI of the EIA Act transposes the provisions on the
transboundary environmental impact assessment, which is
required in Article 7 of the Directive.
7. Implementation
Although the Directive has been properly transposed by
means of the EIA Act and the Regulation of the Council of
Ministers of 9 November 2010 on projects that may have a
significant environmental impact (Dz.U. of 2010, No 213, item
1397, as amended), its implementation contains certain flaws.
In order to achieve the Directive’s purpose, an environmental impact assessment has to be conducted on the
basis of suitable information provided by the developer
(i.e. mainly the project specification sheet and the report).
This information can be supplemented by relevant public
administration bodies and the public concerned (recital 7
of the Directive).
However, an analysis of the judgements passed by
Polish courts regarding environmental impact assessments proves that public administration bodies frequently
base their decisions in the EIA procedure on incomplete
or unverified documentation (see: the judgement of the
Voivodship Administrative Court in Warsaw of 8 November
2010, IV SA/Wa 929/10, LEX No 759071).
This is brought about by the manner in which administration bodies treat evidence presented by the public
(frequently represented by environmental NGOs that
participate in the administrative proceedings). It has the
same force of evidence as information contained in the
documents presented by the developer. Usually, however,
such evidence counters the information provided by the
developer. In some cases, public administration bodies treat reports and other documents presented by the
developer as more credible, not bothering to investigate
the matters raised by other participants in the proceedings. Many judgements of Polish courts clearly state that
an EIA report constitutes a private document provided
by the developer that serves as evidence in administrative proceedings (e.g. Voivodship Administrative Court in
Lublin, the judgement of 31 March 2011, II SA/Lu 845/10).
Therefore, EIA reports have the same force of evidence as
other documents presented by the remaining participants
of the proceedings (in particular expert opinions).
Pursuant to the Directive, the public should be informed about the details of the EIA procedure “at the
latest as soon as information can reasonably be provided”
(Article 6 (2) of the Directive). The report should be made
available to the public concerned “within reasonable
timeframes” (Article 6 (3) of the Directive). In the case of
Poland this means that the report is presented to the public shortly after it is provided by the investor, i.e. before it is
thoroughly examined by the relevant administrative body
for the purposes of a preliminary verification and screening
for missing information or data.
Therefore, if the developer is obliged to provide additional information, public participation needs to be ensured
once again. This means that the report has to be made
publicly available and the public has to be provided with
opportunities for submitting comments. Although, formally,
this procedure does fulfil the requirements of the Directive,
it unnecessarily prolongs the proceedings. It also reduces
the transparency of the proceedings, as the introduction
of new annexes, even extensive ones, does not oblige the
developer to submit either a new report or a new unified
text of the report. It is also worth noting that in some cases
supplementing the report with new information does not
result in the repetition of the public participation procedure
nor consultations with relevant bodies7, despite the fact
that this is a statutory obligation.
Although reports frequently include all the legally
required formal elements, i.e. those that are provided for
in relevant provisions, their content is not appropriate for
an environmental impact assessment. This constitutes a
significant problem, in particular for environmental NGOs.
Considering that administrative courts can analyse reports
taking only formal issues into account8, the substantive
value of the report cannot be verified by courts. It can be
assessed only by the public body in charge of the EIA
proceedings. As has already been mentioned, this assessment is frequently far from being perfect.
It is also not unheard of in Polish legal practice for a
formally faulty report to be accepted and serve as the basis
of the decision. This is exemplified by problems with the
description of analysed variants. Article 66 (1) (5) of the EIA
Act states that the report should contain a description of: the
solution proposed by the developer, a rational alternative
and a variant that would be the best for the environment. It
should also present a justification for the choice made. In
some proceedings the bodies in charge issued decisions
on the basis of reports that contained only a description of
the variant proposed by the developer and the alternative
where the project is abandoned altogether.
7. S
ee: E. Smoktunowicz [in:] System ocen oddziaływania na środowisko planowanych przedsięwzięć w aspekcie problemów proceduralnych
i innych, doświadczenie i praktyka RDOŚ w Łodzi, Meeting of the EIA
Working Group, Poznań, 18-20 February 2013, http://www.gdos.gov.pl/
files/ENEA/Gurupy-robocze/OOS/18-20.02/System-ocen-oddzialywaniana-srodowisko-planowanych-przedsiewziec-w-aspekcie-problemowproceduralnych-i-innych.pdf.
8. S
ee: e.g. the Voivodship Administrative Court in Olsztyn, judgement of 10
May 2011, No II SA/Ol 176/11, LEX No 795681.
97
However, a variant where the project is abandoned
cannot be treated as a rational alternative to the variant
chosen by the developer (see: e.g. the Voivodship Administrative Court in Gdańsk, judgement of 24 March 2011, II SA/
Gd 864/10, ONSAiWSA 2012/3/48). The Voivodship Court
in Gdańsk stated that: “if the EIA report has to describe
several variants of the project, and not only the variant promoted by the developer and the variant where the project is
abandoned, and if pursuant to the aforementioned Article 81
(1) [of the EIA Act], the applicant does not decide about the
choice of the variant to be implemented, but has to cooperate in this area with the body that issues the decision on
environmental requirements for the consent to implement
the project, it is of particular importance that variants are
analysed taking into consideration the reservations about
the project that have been voiced during the proceedings.”
If a decision is issued on the basis of a report that
violates the provision of the EIA Act, the whole EIA procedure becomes faulty. As a consequence, the Directive has
not been not properly implemented, i.e. it is impossible to
assess the possible significant environmental impact of
projects on the basis the information provided inter alia by
the developer.
Improper description of the project by the developer
constitutes another problem in the area of implementation.
If this is not verified by public administration, the project
may be incorrectly classified and as a result the wrong
administrative proceedings may be applied. Sometimes
developers divide the project in order to exclude some or
all of its elements from the obligation to conduct an EIA,
which also leads to flawed implementation practice.9
objective
Despite the abovementioned problems with the Directive’s
transposition and implementation, it may be concluded
that its purpose has been achieved – development permits
for public and private projects that may have a significant
environmental impact are issued only when this impact is
assessed. The majority of these assessments is conducted in line with the Directive.
According to the information available, the European Commission is not conducting any procedures against Poland
due to the improper transposition or implementation of the
Directive.
10. NGO initiatives
Environmental NGOs actively participate in EIA proceedings, submitting comments or appealing against decisions issued.
Moreover, NGOs carry out initiatives aimed at ensuring that the full force of the provisions of the EIA Directive
is exercised in the Polish legal system. In this context it is
worth mentioning the objection of NGOs from the Climate
Coalition, including Foundation ClientEarth Poland, to the
proposed amendment of Article 44 of the EIA Act10.
Pursuant to this amendment, Article 44 (1) of the EIA Act
10. http://legislacja.rcl.gov.pl/docs//2/141245/141276/dokument83642.pdf?lastUpdateDay=03.09.13&lastUpdateHour=17%3A04&userLogged=false&date=wto
rek%2C+3+wrzesie%C5%84+2013
9. See: E. Smoktunowicz [in:] System ocen oddziaływania na środowisko planowanych przedsięwzięć w aspekcie problemów proceduralnych i innych, doświadczenie i praktyka RDOŚ w Łodzi, Meeting of the EIA Working Group, Poznań, 18-20 February 2013, http://www.gdos.gov.pl/files/ENEA/Gurupy-robocze/
OOS/18-20.02/System-ocen-oddzialywania-na-srodowisko-planowanych-przedsiewziec-w-aspekcie-problemow-proceduralnych-i-innych.pdf.
98
will have the following wording: “Environmental nongovernmental organisations that referring to their statutory
objectives express willingness to participate in proceedings that requires public participation, will participate
with the rights of a party to the proceedings if they have
conducted statutory activities in the area of environmental
protection or nature conservation for at least 12 months
prior to the day on which the proceedings was instituted.
The provisions of Article 31 (4) of the Code of Administrative Proceedings are not applied.”
According to NGOs, the proposed amendment will
hinder access to administrative proceedings for environmental organisations. For this reason, its compliance with
the Constitution of the Republic of Poland, the Aarhus
Convention11 and the EIA Directive raises justified doubts.
The new wording of Article 44 (1) of the EIA Act would
provide the relevant public administration body with much
more freedom in deciding whether a particular environmental NGO may or may not participate in the administrative proceedings with the rights of a party. According to the
amendment, only those environmental organisations that
have conducted statutory activities in the area of environmental protection and nature conservation for at least
12 months before the day on which the proceedings are
instituted will have the right to participate in them.
This wording suggests that this period refers to 12
months before the proceedings are initiated by the body
of the first instance, regardless of whether these are the
first proceedings or the case is being re-examined by a
public administration body after previous decisions have
been overruled (such re-examination may take place even
several years after the primary proceedings). This means
that environmental organisations would have to prove that
they have conducted activities in environmental protection
or nature conservation for 12 months prior to the initiation
of the procedure by the first-instance body, even if they
want to join the proceedings only at the appeal stage.
Due to this temporal criterion NGOs will have to
specify the calendar date marking the beginning of their
activities in environmental protection or nature conservation. Moreover, public administration bodies will have to
assess whether the organisation in question really acts in
the area of environmental protection or nature conservation. In other words, this amendment would provide public
administration bodies with the right to decide whether
activities conducted by a particular environmental NGO
should be classified as relating to environmental protection
or nature conservation.
This is a significant problem, as, unlike the other
criterion, i.e. statutory objectives, the criterion of activity
in the aforementioned areas refers more to the practical
operation of the NGO in question (and not to the formal
expression of statutory objectives). Moreover, a thorough
case-law analysis does not exist for this criterion, therefore, it would be difficult for NGOs to adjust their operation
so as to fulfil it.
For the above reasons, in May 2013, Foundation
ClientEarth Poland, in a letter to the Ombudsman, referred
to problems resulting from the proposed amendment of
Article 44 of the EIA Act.
11. Convention on Access to Information, Public Participation in DecisionMaking and Access to Justice in Environmental Matters, adopted in Aarhus, on 25 June 1998 (Dz. U. of 2003, No 78, item 706).
99
Maria Magdalena Kenig-Witkowska
Professor, Head of Chair of European Union Law; Deputy Director of International Law Institute at the Faculty of Law and Administration, University of Warsaw; member of Scientific Council of the University of Warsaw Center for Environmental Research;
member of International Law Association; member of European Law Association; international and national expert on environmental issues (consultant to UNEP, ILO, ECA, and governmental institutions). Author of numerous publications on international
and European environmental law. Judge Manfred Lachs prize winner in 2006; in 2012 Minister of Science and Higher Education Award or outstanding scientific achievements in environmental law. Visiting professor at European, North American, African and South-East Asian Universities. Member of the Program Board of ClientEarth Poland.
Sharon Turner
Professor Turner leads the Climate and Energy Programme which spans London, Brussels and Warsaw ClientEarth offices.
She is an environmental lawyer with a background as an academic and government legal advisor. She has spent most of her
(25 year) career working as an academic in the School of Law at Queen’s University Belfast, where she was the Professor of
Environmental Law and the Director of the Masters in Environmental Law & Sustainable Development. She has also worked
as a legal adviser to the Northern Ireland Government, as an external expert, and from 2002-2004 was seconded to its Department of the Environment where she worked as the Senior Legal Adviser on Environmental Law. She is honorary professor at
University College London and at the University of Sussex.
Marcin Stoczkiewicz
ClientEarth senior lawyer, head of the Polish team for Climate and Energy, a member of the board of the Foundation ClientEarth Poland. He has over 15 years of experience in the field of environmental law. Prior to joining ClientEarth, a partner in the
law firm " Jendrośka, Jerzmański, Bar and Partners", which specializes in Polish and European environmental law. He obtained a degree in Law at the Faculty of Law and Administration of the Jagiellonian University. In 2002 he received the degree of
Doctor of Law in the same department. In the years 2002-2013 Adjunct Professor at the Law Faculty of the Jagiellonian University in the Department of Public Economic Law (2002-2010) and then at the Department of Environmental Protection Law
(2010-2013).
Agata Bator
Polish qualified lawyer. Her work focuses on energy efficiency and its promotion, in particular in the context of using EU funds.
Prior to joining ClientEarth she was employed in leading Polish and international law firms, specializing in advising clients from
the energy sector. Her professional experience covers in particular legal aspects of renewable energy sources, combine heat
and power generation, and legal aspect of grid connections. Agata Bator graduated from the Faculty of Law and Administration
and the Faculty of Philosophy and Sociology of the Maria Curie-Skłodowska University in Lublin.
Robert Rybski
ClientEarth lawyer in the Climate and Energy team, based in Warsaw, Research fellow within the Constitutional Law Chair at
the Faculty of Law and Administration of the Warsaw University; Robert holds a Master of Laws from the University of Warsaw
and a LL.M. degree from the Humboldt-Universität zu Berlin; Robert has been rooted into the Polish civil society, worked i.a.
for the Polish Ombudsman and Helsinki Foundation of Human Rights; Robert is currently working on a PhD thesis in the area
of constitutional environmental and energy law.
Bolesław Matuszewski is an advocate and has been Fundacja ClientEarth Poland’s attorney since October 2012. He runs his
own law practice in Warsaw specializing in administrative and criminal law. Prior to establishing his own law practice, Bolesław
Matuszewski gained experience in international law firms specializing in commercial law, as well as in a Polish law firm specializing in procedural law. Bolesław Matuszewski is also a lecturer in the field of Anglo-American law and English legal terminology.
Małgorzata Smolak
ClentEarth lawyer in the Climate and Energy team based in Warsaw. She has 13 years of professional experience in the areas
of legal advice, development, project management, local governance and public relations. Before joining ClientEarth, she held
roles in the Institute of Environmental Economics, several local government bodies, private sector and in peacekeeping mission in Bosnia and Herzegovina. She is a lawyer with a Master's Degree from Jagiellonian University. She also obtained postgraduate diplomas in diplomacy and international relations and in European integration.
100
Summary
Marcin Stoczkiewicz
The aim of this report has been to review and analyze the
state of the implementation in Poland of the most important directives which make up the climate protection law of
the European Union. It mainly covers the so-called directives of the climate and energy package and the associated functional directives on energy efficiency, industrial
emissions, air quality, and the environmental impact
assessment of projects. Their complete implementation
could have a positive effect with regards to solid reduction
trends in greenhouse gas emissions. An analysis of the
implementation of the directives and a preceding introductory chapter explain to the reader obligations of the Member States of the European Union. The report takes into
account the state of the implementation of the directives
as of 14 September 2013.
Of the 11 analyzed, only one directive (Directive
2011/92/EU on the environmental impact assessment) was
transposed into Polish law within the required deadline. The
other directives analyzed have all been transposed into
Polish law with considerable delay and the transposition
process has not been completed.
Two very important directives, from the point of view of
climate protection, have not been transposed into Polish
law, although the deadlines for transposition have passed:
the second Directive on Emissions Trading (2009/29/EC)
and the Directive on Industrial Emissions (2010/75/EU).
Shortcomings in transposition or bad (incomplete) transposition have resulted in gaps in the practical implementation of eight directives.
With regard to the two directives, it cannot be said at
all, that they have achieved their objectives, whereas the
objectives of the next five directives are significantly compromised.
The European Commission has initiated proceedings
on the absence of transposition of eight directives in Poland under Article 258 and Article 260 of the Treaty on the
Functioning of the European Union; one of these procedures has been discontinued.
EU ETS Directive
the of 23 April 2009 amending Directive so as to improve
and extend the EU system greenhouse gas emissions
trading - has not been transposed into the Polish legal
system. The Directive entered into force on 25 June 2009.
The period for transposition passed 31 December 2012.
Due to the lack of transposition and implementation into
Polish law of Directive 2009/29/EC, in particular, the lack
of imposition on operators of the obligation to purchase
allowances at auction and the rules of allocation of income
arising from the sale of emission allowances, the purpose
of the Directive has not yet been achieved. The Emissions
Trading Scheme operating in Poland does not in fact comply with the provisions laid down in Directive 2009/29/EC.
However, due to the transposition and the very advanced
nature of the process of the implementation of Art. 10c of
the amended Directive 2003/87/EC, to the extent that these
rules allow for power plant operators to obtain free emission allowances, the achievement of the objectives set out
in Art. 1, paragraph 2 (reduction by 2020 of the total EU
greenhouse gas emissions by at least 20 % compared to
1990 levels) and Art. 1, paragraph 3 (introducing stricter
Community reduction commitment exceeding 20% after the
approval of an international agreement on climate change)
are significantly compromised. In relation to the failure by
Poland to transpose Directive 2009/29/EC, on 31 January
2013 the European Commission sent to the Polish authorities a formal note pursuant to Art. 258 of the Treaty on the
Functioning of the European Union.
RES Directive
the Council of 23 April 2009 on the promotion of energy
from renewable sources and amending and subsequently
repealing Directives 2001/77/EC and 2003/30/EC entered
into force on 25 June 2009. The deadline for transposition
expired on 5 December 2010. Directive 2009/28/EC has not
been fully and correctly transposed into Polish law. Some
of the provisions of Directive 2009/28/EC on energy were
implemented with a delay of almost three years by the socalled "Small three-pack", the Act of 26 July 2013 amending
the Act on Energy Law and other Acts. There is a risk that
the national objectives and the so-called trajectory of their
achievement will not be met by Poland, due to the lack of
support for fixed renewable energy sources. In the transport
sector, due to the failure to transpose Directive 2009/28/
EC regarding the criteria for sustainable development, the
share of energy from renewable sources in transport that
meet these criteria in Poland is close to zero. On 21 March
2013 the European Commission brought a case against
Poland before the Court of Justice of the European Union
due to its "failure to transpose" Directive 2009/28/EC.
The Commission is seeking the award of a penalty for the
amount of the daily rate for each day of non-transposition
of € 133,228.80. This means that for each year that Poland
remains in a non-transposition state a fine of approximately
205 million PLN may be imposed.
CCS Directive
the Council of 23 April 2009 on the geological storage of
carbon dioxide and amending Council Directive 85/337/
EEC, European Parliament and Council Directives 2000/60/
EC, 2001/80 / EC, 2004/35/EC, 2006/12/EC, 2008/1/EC
and Regulation (EC) No 1013/2006 entered into force on 25
June 2009. The deadline for the transposition of the directive into national law expired on 25 June 2011. It was only
on 30 August 2013 that the Lower Chamber of the Polish
Parliament passed a bill amending the Act – The Geological and Mining Law Act and certain other acts with drafts of
executive regulations, which aim to transpose the Directive
into Polish law. Due to the prolonged absence of relevant
provisions in national law, it is difficult to talk about the
proper implementation of Directive 2009/31/EC. The cases
in which an attempt have been made in Poland to use
technology for the capture and storage of CO2, as well as to
explore the possibility of its use in the future, were very few
and unsuccessful. In the absence of a timely transposition,
Poland has not been adhering to the so-called CCS-readiness assessment. According to Directive 2009/31/EC the
competent authority should require any investor applying for
permission to build a large fuel combustion plant to evalu-
101
ate the CCS-readiness, i.e. assess whether (i) transport
facilities are technically and economically feasible, and (ii)
a retrofit for CO2 capture is technically and economically
feasible. In the absence of a proper transposition and implementation of Directive 2009/31/EC, the objective has not
been achieved in Poland. On 18 July 2011 the European
Commission decided to initiate proceedings against Poland
for the non-transposition of Directive 2009/31/EC.
The Directive on energy end-use
the Council of 5 April 2006 on energy end-use efficiency
and energy services, repealing Council Directive 93/76/EEC
came into force on 17 May 2006. The deadline for the transposition and implementation of this Directive expired on 17
May 2008. Directive 2006/32/EC has been transposed into
Polish law by the Act of 15 April 2011 on energy efficiency.
The transposition of the Directive is incomplete and to some
extent incorrect. The general objective of Directive 2006/32/
EC is to achieve energy savings of 9% by 2016 in relation
to the average consumption in the years 2001-2005. An
evaluation of the implementation of this objective will therefore be possible in 2016. In addition, it appoints an intermediate indicative target of 2% of the average consumption
of the years 2001-2005. According to the second National
Action Plan on energy efficiency, by 2010, Poland achieved
energy savings of 5.9% of the average consumption in
the years 2001 to 2005, and thus the intermediate indicative target had been achieved. By 1 September 2013, the
Commission published a report on the assessment of the
second national action plans on energy efficiency provided
by the Member States. Proceedings initiated by the Commission against Poland for its failure to transpose Directive
2006/32/EC have been waived.
The Ecodesign Directive
the Council of 21 October 2009 establishing a framework
for the setting of ecodesign requirements for energy-related
products came into force on 20 November 2009. The deadline for implementing the Directive into national law expired
on 20 November 2010, Directive 2009/125/EC was transposed into Polish law by enacting a regulation of the Minister of the Economy of 17 December 2010 on the conformity
assessment procedures of energy-using products and their
labeling. Most of the provisions of Directive 2009/125/EC
have been correctly transposed into Polish law. Additionally,
the measures necessary for the practical implementation
of its provisions have been taken. The overall aim of the
directive of ensuring the free movement of energy-related
products on the internal market, as a result of the framework setting ecodesign requirements for energy-related
products, has been achieved.
The Directive on Product Information
about the Consumption of Energy
the Council of 19 May 2010 on the indication by labeling
and standard product information of the consumption of
energy and other resources by energy-related products
came into force on 19 June 2010. The deadline for the
transposition of the Directive expired on 20 June 2011.
Directive 2010/30/EU was transposed into Polish law by
enacting the Act of 14 September 2012 on the obligations to
provide information on energy-using products. The transposition is complete and correct. Due to the fact that the
provisions of the Act of 14 September 2010 have only been
functioning for a short period (the provisions entered into
102
force on 1 February 2013), for now (September 2013) it is
difficult to assess the practical implementation of its provisions. Directive 2010/30/EU does set a specific target, but
its requirements are associated with the overall objective
of the reduction of energy consumption in the EU by 20%
by 2020. An evaluation of the contribution of information on
energy-using products to achieve this goal will be possible
only after a certain time, and the final verification of the
objective of reducing energy consumption by 20% will be
possible in 2020. The European Commission has carried
out a procedure related to the lack of a notification of national laws transposing Directive 2010/30/EU. On 26 March
2012, the European Commission addressed Poland with a
reasoned opinion. As of 21 February 2013 the investigation
was still ongoing.
Directive on the energy performance of buildings
the Council of 19 May 2010 on the energy performance of
buildings came into force on 8 July 2010, and the deadline
for the transposition of the directive into national law passed
on 9 July 2012. Directive 2010/75/EU was transposed into
Polish law only rudimentary by Article 4 and Article 6, by
regulations issued by the Minister of Transport, Construction and Maritime Economy on 5 July 2013 and 21 June
2013. Due to a lack of full transposition and implementation of Directive 2010/31/EC, its objective has not been
achieved in Poland. In relation to the failure by Poland to
transpose Directive 2010/31/EU, on 20 June 2013, the
European Commission sent to the Polish authorities a
reasoned opinion.
Directive on fuel quality
the Council of 23 April 2009 amending Directive 98/70/EC
regarding the specification of petrol and diesel fuels and
introducing a mechanism to monitor and reduce greenhouse gas emissions and amending Council Directive
1999/32/EC as regards the specification of fuel used by inland waterway vessels and repealing Directive 93/12/EEC
came into force on 25 June 2009. The Directive has been
transposed only in a very limited part. The fundamental
failure to transpose Directive 2009/30/EC is reflected in
the lack of any appropriate implementation of the Directive in the Polish legal system. In the case of Directive
2009/30/EC, it is possible to identify four objectives which
are to be achieved by a correct implementation: (1) a level
of air quality that does not result in a significant adverse
impact on human health and the environment - this is
the main objective, (2) the monitoring and reduction of
greenhouse gas emissions in the lifecycle of fuels, (3) the
decarbonisation of transport fuels by appropriate specifications of fuel, and (4) the compliance of biofuels with
sustainability criteria. Out of the above four goals, only one
has been partially fulfilled (the fuel specification). Currently
the European Commission has not initiated any proceedings against Poland related to Directive 2009/30/EC.
CAFE Directive
cleaner air for Europe entered into force on 11 June 2008.
Member States were obliged to transpose it by 11 June
2010. It was not until 28 May 2012 that the Act of 13 April
2012 amending the Act on Environmental Protection Law
and other laws was enacted and Directive 2008/50/EC was
transposed. The transposition has significant shortcomings.
Due to the delayed and a partially defective transposition of
the provisions of Directive 2008/50/EC relating to air quality
plans, its implementation is incomplete. Although air quality
plans and short-term action plans containing, as described
in Directive 2008/50/EC, information and measures should
have entered into force by 11 June 2010, in Poland there
are currently (September 2013) plans being drawn up under
the old rules. The new plans will be adopted, therefore, only
in November 2013, and due to the fact that these programs
are currently under preparation it is difficult to determine
the quality of the implementation of the provisions on the
plans, but due to the incorrect transposition of Art. 23
Paragraph 1 of Directive 2008/50/EC into Polish law, it can
be assumed that these programs will not ensure that the
period of non-compliance with the limit values will be "as
short as possible." The purpose of Directive 2008/50/EC,
which is to prevent and reduce the harmful effects of air
pollution on human health and the environment as a whole
has not been achieved in Poland. According to data from
2011, in each zone, concentrations exceeding the standard
values for one or more than one pollutant were recorded.
Against the zones where the limit values for PM10 have
been exceeded, the European Commission has decided to
initiate infringement proceedings under Art. 258 or 260 of
the Treaty on the Functioning of the EU TFEU (violation No.
2008/2199). This procedure is still ongoing.
environmental impact assessment, which transpose Directive 85/337/EEC were included in the Act of 3 October 2008
on the provision of information about the environment and
its protection, public participation in environmental protection and environmental impact assessments. Basically,
the transposition of the directive is correct. Despite some
problems with the implementation of Directive 2011/92/EU,
it must be noted that the purpose of the directive in principle
has been reached, i.e. permits for investments in public and
private projects, which are likely to have significant effects
on the environment shall be provided only after an assessment of the likely significant environmental effects of these
projects, and in most cases, the assessment is made in accordance with the spirit of the directive. At the moment there
are no ongoing proceedings against Poland initiated by the
European Commission because of the incorrect transposition or implementation of Directive 2011/92/EU.
IED Directive
the Council of 24 November 2010 on industrial emissions
came into force on 6 January 2011. The deadline for the
transposition and implementation of the vast majority of
the provisions of the Directive expired on 7 January 2013.
Directive 2010/75/EU had not been transposed into Polish
law by 7 January 2013, and this state persisted on the day
of the completion of the work on this study. In the absence
of a timely transposition of Directive 2010/75/EU into Polish
law, there is no implementation into the Polish legal system.
However, using the optional derogation provided for in Art.
32 of Directive 2010/75/EU, the Council of Ministers adopted a draft Interim National Plan (PPK) and on 27 December
2012, the Ministry of the Environment provided the PPK
project to the European Commission by the deadline of 31
December 2012 as instituted by Art. 32 Paragraph 5. The
implementation of the objectives of Directive 2010/75/EU is
very significantly compromised by the absence of its timely
transposition and implementation. The objective of the
Directive will be particularly difficult to reach with regard to
power installations. As indicated in Blumberg, New Energy
Finance Poland's existing fuel combustion plants with a total
capacity of 33 GW do not meet the emission standards of
Directive 2010/75/EU. Due to the failure to transpose Directive 2010/75/EU into Polish law the European Commission
has started the procedure laid down in Art. 258 of the Treaty
on the Functioning of the European Union.
EIA Directive
the Council of 13 December 2011 on the assessment of the
effects of certain public and private projects on the environment, which came into force on 17 February 2012, does
not specify a deadline for the adoption of national schemes
aimed at its implementation. Directive 2011/92/EU is merely
a codification of the existing legal solutions that have already been implemented. It is an attempt to harmonize EU
rules on the assessment of the environmental impact previously contained in Council Directive 85/337/EEC of 27 June
1985 on the assessment of the effects of certain public and
private projects on the environment. Polish regulations on
103

report - ClientEarth

Transcription

Similar documents

monitoring water quality by caesb

here - DGM-SDG

Bollettino selezione 300-Ex

JUDGMENT OF THE COURT 15 June 1999 * In Case C-140

Form matters: informing consumers effectively

NWRM Policy document_12_11_2014 (v 4)

Polish Film Festival Flyer 8_5x5_5

by Mazurkas Travel - Mazurkas Travel Poland

Document

Polish American Journal